Neighbours

Contributor: Dr Nicolas Seddon

Currency of information: July 2009

Resolving the Neighbour Disputes

Living in close quarters with our neighbours is not always easy. Over time, there is likely to be at least one issue on which you and your neighbours have a dispute -- it may be trees, dogs, noise, parking, fences -- the list is almost endless. In most cases, your best outcome will be by finding a way to resolve those issues and still be able to live alongside your neighbour. Involving the law should always be your last resort.

Getting into legal disputes with your neighbours is generally more likely to inflame the situation than see a "liveable" resolution worked out. Even if you win the battle of a court case, people can sometimes wage an endless war which could make living in your home an ongoing nightmare. Working out disputes in a cooperative and friendly way is more likely to bring a long-term outcome with which all parties are able to live.

If a neighbour is being threatening or worse, this becomes a criminal matter. Apart from seeking the assistance of the police, it is possible to obtain a protection order from the Magistrates Court under the Domestic Violence and Protections Orders Act 2008 (ACT) s 11.

My Neighbours are Causing me Grief -- What should I do?

Do not over-react to what may be a "one off" event. Loud noise from the neighbours' annual party may cause sleep loss and irritation, but think carefully before making it an area of dispute with your neighbours, who may usually be quiet and considerate people. It is not worth destroying a long-term relationship or peaceful co-existence with your neighbours unless there is serious continuing nuisance, disturbance or disruption.

The first step in dealing with any neighbourhood issues is simply to talk. Keep the approach low-key and pleasant. Remember, your neighbour does not see or hear things from your perspective, so may not even be aware that their activity is the source of concern or irritation for you.

Before talking to your neighbour about your concerns, take a step back and:

• ask yourself if you have been doing anything which may have caused annoyance for your neighbour; and
• try to look at the situation from your neighbour's point of view. (Why are they doing this? Would it be easy for them to stop or change what they are doing?)

When made aware of what, to you, is a real problem, your neighbour may be willing to stop or modify the cause of your concerns. This would be a great outcome for you both.

However, it is sometimes difficult to reach agreement when it is just the two people involved with vastly different "takes" on the issue. It can be useful to get a neutral third party involved to help you both to work through the issues and try to reach a mutually acceptable compromise (see How a Mediation Works).

Conflict Resolution Service

The ACT has a Conflict Resolution Service (see www.crs.org.au). It is a not for profit community organisation partly funded by the ACT Government's Department of Disability, Housing and Community Services' 'Community Services Program'; and Department of Justice and Community Safety's 'Healthy Neighbourhood Project'. It is free to low income earners.

If you have a neighbour dispute it is important to check the website of the Conflict Resolution Service. There is a specific section devoted to neighbourhood disputes which contains excellent advice, information and many relevant websites. It has a Dispute Assessment Line on (02) 6162 4050.

The Conflict Resolution Service provides a mediation service which is free for neighbour disputes (not just for low income earners).

How a Mediation Works

In a mediation held through the Conflict Resolution Service, two trained mediators help the parties to reach their own agreement. The mediators do not make any decisions about who is right or wrong or about who should be doing or not doing anything. They must always remain neutral in how they assist the parties to a dispute to reach their own agreement.

The Service tries to select mediators who are most suitable to a particular dispute and have the most likelihood of success in working with the particular problem and people involved. Ideally, mediators should reflect the ages, outlook and culture of the people with whom they are dealing. The Service has a panel of trained mediators drawn from many different backgrounds, ages, social and cultural groups and every effort is made to ensure the right "match". Interpreters are available to assist with language difficulties.

Before taking part in a mediation, the parties usually reach an agreement about certain aspects of how it will run -- where, when, what the issues are. Mediations can be arranged at times to suit the parties: at evenings or weekends.

All mediation sessions are voluntary, private and confidential. Nothing said by any of the parties in a mediation can be used outside it for any other purpose, or in later court proceedings, if the dispute is not settled and ends up in court.

During the mediation, each party has their say, tells their side of the story and hears, often for the first time, the other person's point of view. This is a very useful exercise and is helped by the mediators, who summarise both stories and help define the issues in dispute.

The mediator will help the parties discuss each of the issues, one at a time, and explore ways to settle differences.

Any agreement reached in a mediation comes from the parties themselves. It is not for the mediator to impose decisions or remedies. They cannot say who is right or wrong, who is at fault or what should be done to fix a situation, or award costs or penalties.

The parties to a dispute will often put their agreement in writing, so that each is clear about their obligations and responsibilities following mediation. If the mediation has been successful, the parties will each go away satisfied that their concerns have been heard and understood, and with a practical solution to which they have all agreed.

Although the Conflict Resolution Service provides free mediation for neighbour disputes, a $50.00 cancellation fee will apply for clients who have agreed to mediation but who do not attend without notifying CRS at least 24 hours before the mediation.

The Service does not give legal advice. This should be obtained from either a private lawyer, Legal Aid or a community legal centre. It is a good idea to get legal advice about your dispute, whether or not you decide to use the services offered by the Conflict Resolution Service.

Nuisance

When something is annoying we often think of it as a nuisance. However, there is a difference between what is annoying and what is a "nuisance" in law. The law and the courts will only be able to provide a remedy to you if the situation you are complaining about fits within the legal definition of nuisance.

There are two recognised types of nuisance -- private and public. Both types of nuisance involve interference with an individual's enjoyment of life. Private nuisance is relevant to neighbour disputes.

Private nuisance is not a crime; it is essentially a dispute between two individuals. Public nuisance is often both a civil wrong and a crime, and there may be penalties such as fines or imprisonment ordered against those responsible for creating the nuisance.

Public Nuisance

An example of this would be someone blocking off a public road. This action would have an effect on a wide range of people -- each of whom would be affected or disadvantaged to differing degrees.

For an individual to have an action for compensation for the inconvenience or interference suffered, he or she would have to show that the impact was such as to cause them special damage. That is, they must show that the impact on them was greater than that on the general public. For example, if a road was blocked causing loss of business to a shop located in the road, the shop owner would have a right to claim for public nuisance. On the other hand, a member of the public who merely had to take an alternative route would not be able to claim. Public nuisance is unlikely to be a basis for complaint against a neighbour.

There is also legislation which complements the common law of public nuisance. For example, the Environment Protection Act 1997(ACT) ss 22 and 141 prohibit a person from causing an "environmental nuisance".

Private Nuisance

Private nuisance is just that -- private. It is enough to show that you have been affected by some act or omission of another person. The effect must be that your enjoyment and use of your land (which includes when you are a tenant) has been interfered with. It is not possible to use a claim for private nuisance for a nuisance in a public place (public nuisance can be applicable). Private nuisance, because it relates to use of land, is peculiarly suited to neighbour disputes.

To have a claim for private nuisance, you must show that the other party has:

• indirectly caused physical damage to your land; or
• substantially and unreasonably interfered with your use and enjoyment of your land.

Direct physical damage to land is covered by trespass (see Trespass).

Examples of interference that have been found by courts to be private nuisances are: noisy animals, noisy air-conditioners, smoke, overhanging tree branches, tree roots growing into neighbour's land and interfering with drainage, vibrations, dust. Activities which have caused people to fear for their safety, such as aerial spraying of crops and firing of guns on a rifle range, have also been assessed as "private nuisance".

There are also some recognised forms of nuisance that concern the use of land itself (these are called servitudes). Examples are interference with natural lateral support of land, blocking of natural light and material interference with easements.

However, case law has established that certain "interferences" do not constitute a nuisance under common law. Blocking your neighbour's view, interfering with your neighbour's television or radio reception because of a building and looking at what goes on in your neighbour's property are not nuisances in law.

In making your complaint to the court or tribunal, you must show that the nuisance complained of is not trivial and is unreasonable. In deciding if what you complain about is a "private nuisance", the court would look at a number of factors, including:

• the general nature of your neighbourhood;
• where the interference took place (or is taking place);
• what activity is causing the interference;
• how long the interference lasted and whether it is continuing;
• the time of day or night the interference occurs;
• the impact the interference is having on you;
• whether the interference was pre-existing when you moved into your property;
• how useful or necessary the activity causing the interference is; and
• what reasonable people would think of the interference.

The court tries to use common sense in assessing these factors. It will also weigh the inconvenience or impact of the interference on you against the cost and effect of having the person responsible for the interference modify or stop their activities.

It is a reality of living in close quarters to our neighbours that there will competing interests and activities -- not all of which are compatible or which increase the enjoyment of living in the neighbourhood. A court, in deciding on a complaint of nuisance, will weigh up these competing interests in a pragmatic sense, recognising that some noise, annoyance, inconvenience and discomfort must occur wherever people live.

For example, your neighbour's barking dog might wake you up every once in a while, but courts know that dogs bark and that the law allows people to keep dogs. Unless a dog is particularly noisy, a court will not usually help you to keep it quiet. Similarly, temporary inconvenience because a neighbour is carrying out renovations will usually not be an actionable nuisance. It may be the other way around in the foreseeable future. There is an element of give and take in the law of nuisance.

There is specific legislation dealing with particular sources of nuisance, namely:

• fire (see Fire);
• animals (see Animals);
• noise and other environmental nuisances (see Noise And Other Environmental Nuisance).

This means that you may have rights both under common law principles and under the appropriate legislation. Or it may be that you can ask the relevant regulatory authority to take action.

There is also specific legislation dealing with the committing of a nuisance (or similar conduct) in certain circumstances:

• the Residential Tenancies Act 1997 (ACT) Schedule 1 clause 70 makes it a standard clause of the lease that the tenant must not cause or permit a nuisance;
• the Unit Titles Regulation 2001 (ACT) provides for default owner corporation articles dealing with hazardous use of a unit (cl 6), nuisance (cl 7) and noise (cl 8);
• the Community Title Act 2001 (ACT) Schedule 1 similarly provides for default by-laws dealing with nuisance (cl 1.2), use so as not to interfere with the reasonable use and enjoyment of others (cl 1.5) and the keeping of animals and birds (cl 1.7).

The remedy stemming from these provisions is indirect, namely, to complain to the landlord in the case of a tenant or to the body corporate.

Who is Responsible?

The person who creates a nuisance (for example, a contractor carrying out work on the land) is legally responsible but is not the only person who may be held by a court to be responsible. A person who occupies land and allows someone else to create or maintain a nuisance on the land is also legally responsible for the nuisance. So is a person who allows someone else to do something which creates a special risk of a nuisance being created. For instance, the occupier of a hall who let it out on hire for wedding receptions was held to be responsible when those using the hall were too noisy.

People can also be held responsible for a nuisance where they know, or ought to know, about a nuisance on their property but do nothing to remove or stop it.

Where the premises from which the nuisance emanates are leased, it is usually the tenant who is legally responsible. However, if the terms of the lease are such as to be likely to cause a nuisance, then the landlord can be liable. The landlord is also responsible if the cause of the nuisance is something within the landlord's control, such as a dilapidated and dangerous building.

What is not a Nuisance?

There are three defences people can raise if you accuse them of creating a private nuisance:

(1) you consented to the act or thing which you say is the nuisance;

(2) the nuisance has been allowed to exist for more than 20 years (this argument does not apply to trees); or

(3) the thing you are complaining about arises out of something authorised by a law (this does not apply if negligence is involved).

What you can do about it

If your neighbours are creating a nuisance, the first thing you should do is talk to them about it and ask them politely to stop it, or remove it.

It may help if, before you speak to your neighbours, you try to put yourself in their shoes. Why are they creating the nuisance? Are they likely to continue it? Do they know that it bothers you?

If talking gets you nowhere, it may be useful to use the services of a mediator (see Conflict Resolution Service). If that fails, or instead, you may decide to exercise some "self help". The best example of this is with tree branches and roots. You are legally allowed to cut back any branches or roots which protrude onto your land. You do not have to give any warning that you are going to do this unless you need to go onto your neighbour's land to do the cutting safely. (This warning is not needed if it is an emergency.) Even so, it is obviously advisable to warn that you will resort to self help if the branches or roots are not removed.

Anything you cut off your neighbour's tree belongs to your neighbour and should be returned. The law calls this do-it-yourself action "abatement". There are only limited situations where you can use it. For instance, you cannot strangle or poison your neighbour's barking dog.

Taking Legal Action

If you can convince a court or tribunal that your neighbour has created a nuisance, and you are unable to resolve the issue informally or through mediation, the court or tribunal can:

(1) order your neighbour to stop or remove the nuisance (this order is called an injunction); and/or

(2) order your neighbour to pay you compensation; or

(3) order your neighbour to stop doing something that is likely to create a nuisance and harm you or your property.

In order to be able to claim compensation, you must be able to prove financial loss of some kind. If this is not possible, it is still possible to obtain an injunction.

In the ACT the appropriate forum is the ACT Civil and Administrative Tribunal (ACAT) which is governed by the ACT Civil and Administrative Tribunal Act 2008 (ACT). It has special procedures for the various types of conduct that are likely to be the subject of neighbour disputes, including nuisance.

ACAT procedures for civil actions are dealt with in AdministrativeLaw. ACAT requires specific forms to be used. For an application for a nuisance action the form is AF 2009-126. Under the ACT Civil and Administrative Tribunal Directions 2009 there is a fast track procedure for nuisance cases.

Dangerous Things on Land

If a person in control of land brings onto the land and keeps there anything likely to do mischief if it escapes, that person could be liable for the reasonably foreseeable consequences of any escape. The escape may involve seepage, leakage or the collapse of an object. Water, electricity, gas, oil or fire might be involved.

It was once thought that any liability was "strict", under the so-called "rule" in Rylands v Fletcher (1868). It now seems that there will be liability only if the principles of negligence, nuisance or trespass apply.

So, some element of "fault" will be necessary before any liability in negligence (and, in some instances, nuisance) can arise. However, fault will not be necessary if the principles of trespass (and, in some instances, the principles of nuisance) are satisfied.

Fire

People who light fires on their properties which spread and damage, destroy or endanger someone else's property may be committing an offence against the Emergencies Act 2004 (ACT). The same applies to people who leave fires on their properties before the fires are completely extinguished.

Under the Emergencies Act 2004 (ACT)it is permissible to light a fire on one's own land, so long as there is no total fire ban:

• for burning off outside the bushfire season (October to March unless declared otherwise) so long as at least 24 hours' notice has been given to neighbours (s 123(2));
• for burning off within the bushfire season so long as a permit has been obtained from the ACT Emergency Services Agency (s 123(3));
• to burn material on any day (whether in or outside the bushfire season), for example in an incinerator, in accordance with the Authority's oral approval (s 123(4)) (no requirement to give notice to a neighbour);

This list is confined to neighbour's conduct and does not cover all circumstances governed by the Act, for example, lighting fires in public places for cooking.

Lighting a fire other than in accordance with the Act is an offence: s 125.

Land

Trespass

If you deliberately or carelessly do something that directly impacts on someone else's land, you commit a trespass. It is not usually a crime, but is a civil wrong, and you can be sued for doing it even if you did not cause any damage by trespassing.

The most common example of trespassing is when you go onto someone's land without their permission. It is also trespassing to dump rubbish on someone else's land. Land includes everything above and below the ground, so you might be trespassing if you burrow under someone else's land or allow a crane to swing over your neighbour's land.

It is not trespass if you have permission (a licence) to go onto the land. There are many circumstances where a licence will be implied. For example there is an implied licence to go to the front door to make an inquiry or to canvass support (unless there is a notice to the contrary). There is probably an implied licence to recover a ball from the neighbour's garden though it would be best to seek permission. The occupier can revoke the licence (usually by indicating that the person must leave) in which case the entrant has a reasonable time to leave. If the person does not leave, it is permissible to resort to self help by using reasonable, but not excessive, force to oust the person.

To bring an action against someone for trespassing, you have to show that you have a right to exclusive possession (rather than ownership) of the land on which the trespass occurred. This means that a squatter can take action against a stranger. The fact that the owner can take action against the squatter is not relevant to the action by the squatter against the intruder.

It is even possible for a tenant to bring an action in trespass against the landlord. The tenant has the right to exclusive possession. The landlord will probably have a limited licence to come onto the land under the lease but must adhere to the terms of the lease (such as giving notice to the tenant) to use this right.

Signs that have the words "Trespassers will be prosecuted" written on them are not strictly accurate unless there is legislation which makes trespassing an offence. It is an offence to trespass without reasonable excuse on ACT Government premises: Crimes Act 1900 (ACT:NSW) s 154 or Commonwealth Government prohibited premises: Crimes Act 1914 (Cth) s 89.

What you can do about Trespassers

As noted above, you are allowed to eject a person who comes onto your land without your permission or where implied permission (see Trespass) has been clearly revoked. You must not use any more force than is reasonably necessary to do this. Obviously you should first ask the person to leave before you consider any more drastic action. If you use too much force, you may be guilty of assault and could be committing a crime or be sued for damages for any injuries the trespasser suffers as a result of your actions.

Taking Legal Action

If you can convince a court or tribunal that someone has trespassed on your property, it can order the trespasser:

(1) to stop trespassing now, and to never trespass again (this is an injunction); and/or

(2) to pay you compensation.

In order to obtain compensation, you must be able to prove some monetary loss (for example that the trespasser damaged some item). An exception to this is where the wronged party seeks exemplary (or punitive) damages. This will only be awarded if the trespasser has behaved particularly badly and has shown a contemptuous disregard of the rights of the occupier. If it is not possible to obtain compensation, it is still possible to obtain an injunction.

If a trespasser claims to be entitled to stay on your land, you can ask the court or tribunal to decide if this claim is valid and, if it is not, to give you an order for possession.

In the ACT the appropriate forum is the ACT Civil and Administrative Tribunal (ACAT) which is governed by the ACT Civil and Administrative Tribunal Act 2008 (ACT). It has special procedures for the various types of conduct that are likely to be the subject of neighbour disputes, including trespass.

ACAT procedures for civil actions are dealt with in AdministrativeLaw. ACAT requires specific forms to be used. For an application for a trespass action the form is AF2009-67. Under the ACT Civil and Administrative Tribunal Directions 2009 there is a fast track procedure for trespass cases.

Defences

If someone sues you for trespass you may have a defence if any of the following has occurred:

(1) you were on the land with the permission (express or implied) of the person who is suing you;

(2) you have been authorised by some law to go onto the land (see Officials on your Land for examples);

(3) you have gone onto the land to get back goods that belong to you. This applies if the goods have been put there by, or with the help of, the person on the land or someone who has stolen the goods. As already noted, there is in any case probably an implied licence to recover goods that have accidentally gone onto the land, such as a ball or frisbee;

(4) under the Civil Law (Wrongs) Act 2002 (ACT) s 73 it is a defence to an action for trespass to land if the defendant establishes that--

a) the defendant does not claim any interest in the land; and

b) the trespass was because of negligence or was not intentional; and

c) the defendant made a reasonable offer to make amends to the plaintiff before the action was brought.

Officials on your Land

The law allows some people to come onto your land without your permission, such as police, meter readers, the fire brigade and some other officials. This is unlikely to be an issue in any neighbour dispute.

Injuries on your Land

You have a responsibility for the safety of people using or coming onto your premises. This of course applies to all visitors, not just neighbours.

What are "your premises"?

Premises are your premises if you are the one who decides who is and who is not allowed onto them. In the case of leased premises, if the landlord is responsible for the maintenance of, and the repairs to, premises, then the landlord is also responsible to people who hurt themselves on the premises. In a block of flats the landlord or the body corporate is responsible for common areas (stairs, lifts and access points) and tenants/unit owners are responsible for their living units.

What is your responsibility?

You are potentially liable in negligence, that is, you must take all reasonable care to ensure that any person on your premises will not be hurt because of the state it is in. If you do not, you will have to pay compensation to anyone who is hurt whilst on the premises if the injury was caused by a defective or dangerous condition. Case law shows that you may even owe a limited duty of care to a trespasser.

In deciding whether you have taken reasonable care, a court will look at:

(1) the nature of the hazard;

(2) how likely it was that an injury would occur;

(3) how serious the injury is;

(4) how the injured person came to be on your premises;

(5) the nature of your premises;

(6) whether you knew, or ought to have known, that people were likely to be on your premises;

(7) the age of the injured person;

(8) the ability of the injured person to appreciate the danger; and

(9) how difficult or expensive it would have been for you to fix the thing that caused the injury, or to protect people from it.

Fences

Dividing Fences Legislation

Fences are an area of common dispute between neighbours. The Common Boundaries Act 1981 (ACT) Part 2 (Dividing fences) makes occupiers of land responsible for the construction and maintenance of fences. This Act (cited as the Common Boundaries Act in the rest of this Part) also covers party walls (see Party Walls).

An "occupier" is defined as a lessee from the Commonwealth (other than a weekly or fortnightly lease), a person who has a fee simple title or the government (s 2). In the ACT most "owners" are lessees from the Commonwealth. The definition of "occupier" does not include a residential tenant. It would be very unusual for a tenant to be responsible for fences. This means that in a neighbour dispute about fencing, the aggrieved party must find out who the landlord is if the next door property is tenanted.

What follows below only refers to dividing fences, that is, the back fence and the two side fences on most suburban blocks or the boundary fence on rural blocks. Front fences, as a matter of policy, are generally not permitted.

The Common Boundaries Act Part 2 deals with "basic urban fences" and "basic rural fences".

A basic urban fence is defined in s 2 and means a timber paling fence, that is 1.5 m in height above finished ground level and has--

(a) reinforced spade-end precast concrete posts spaced at 2.4 m;

(b) a 75 mm x 50 mm hardwood rail at the top and bottom of the fence that is fixed to the posts; and

(c) 100 mm x 12 mm hardwood palings nailed to the rails.

A basic rural fence is defined in s 2 and means a wire fence that is 1.2 m in height above finished ground level and has--

(a) for intermediate posts--steel line posts spaced at 4 m intervals;

(b) for strainer posts--hardwood posts spaced at 40 m intervals with hardwood bracing at corners;

(c) 3 mm galvanised steel wire at the top, bottom and mid-line of the fence; and

(d) 1060 mm wide and 40 mm mesh size galvanized wire netting.

Erecting New Fences

Neighbours should always try to reach agreement about fencing. If neighbours wish to agree not to fence their boundary, this can be done unless the Planning and Land Authority requires a fence to be erected under s 24 of the Common Boundaries Act.

If adjoining owners are unable to agree on the construction of a fence then either of the parties may make application to the ACT Civil and Administrative Tribunal (ACAT) (s 4). What follows applies when there is no fence rather than repair of an existing fence (see Repair of Fences) and the parties have not been able to agree on some aspect of erecting a fence (including grade of fence).

An occupier is not entitled to make an application to the ACAT until one month after the other occupier is given a written notice inviting him/her to discuss the erection of, and payment for, the fence (s 4(3)). This notice must be in the form of Notice to Discuss Erection of, and Payment for Fencing (Form AF2009-77).

Where an application for a new fence determination has been made (Form AF2009-76), the ACAT may decide that a conference between the parties should be held or may proceed straight to a determination of the dispute (s 9(2)). The ACAT has power to determine the nature of the fence that should be erected, its location, the party responsible for erection, the amount to be contributed by the other party and the manner in which contributions should be paid to the party responsible for the erection of the fence (s 10(2)). ACAT has power to order that the occupier allow the person carrying out the work to gain entry (s 22).

In new development areas it can happen that an owner has no neighbour for a while. Where an owner erects a fence and subsequently a new neighbour is granted a lease, then the owner who erected the fence can make an application (Form AF 2009-81) to the ACAT (called an unleased land determination) to determine the amount of the contribution that the new neighbour should make (ss 7 and 13).

Under the Common Boundaries Act Part 2 Division 2.2 the ACT Planning and Land Authority can require an occupier to erect a fence where the land next door is unleased land (public land).

Cost

If a basic fence is to be erected, the ACAT cannot require the other party to contribute more than half the cost (s 10(3)). The ACAT can decide that a basic fence is not practical.

The cost includes a fee payable to a surveyor (s 2D)).

In the case of an unleased land determination, if the ACAT decides that it is reasonable for the new neighbour to contribute then, provided that the lease was granted within six months of the date of commencement of the erection of the fence, the new neighbour would normally be required to pay half the cost. If the new neighbour was granted a lease more than six months after the fence was built, the Act provides that the contribution should be a "reasonable amount" and, in any case, not more than half (s 13(4)).

A party to an application can re-apply to ACAT (Form AF 2009-82) to vary the original determination (s 14). This presumably is to cover the situation where the estimated cost was not accurate.

Repair of Fences

A similar procedure applies to repairing existing fences. If the parties cannot agree, either may apply to ACAT (s 5) using Form AF 2009-78.

An occupier is not entitled to make an application to the ACAT until one month after the other occupier is given a written notice inviting him/her to discuss the erection of, and payment for, the fence (s 5(3)). This notice must be in the form of Notice to Discuss Repair or Replacement of Fence (Form AF2009-79).

Under s 11 the ACAT must first determine whether the fence is in need or repair or replacement. If it is, the ACAT may then determine whether and how much the neighbour should contribute, the nature of the repair or replacement, who should get the work done and the time within which contribution should be paid (s 11(3)).

Cost

Generally the ACAT will determine that the cost be borne equally, though it has a discretion to make some other ruling (s 11(4)).

The cost of removal of the old fence is part of the cost (s 2C).

There is a separate procedure for seeking a repair cost determination (ss 6 and 12) which is used when a fence had to be repaired quickly after it was destroyed (Form AF 2009-80). The appropriate form which must be given before applying to ACAT (notice to discuss) is not specified but it must be given only 14 days before applying rather than a month.

A party can seek a variation from the ACAT under s 14 (Form AF 2009-82). This presumably is to cover the situation where the estimated cost was not accurate.

Damage by Fire to Fences

The Common Boundaries Act Part 2 Division 2.3 deals with where a fence has been damaged or destroyed by fire. If the damage or destruction was due to the neighbour failing to keep the fence free of flammable materials within 6 metres of the fence and the other party has done so, then the latter can require the neighbour to repair or replace the fence or, failing that, can recover the cost from the neighbour. The neighbour has a month to repair after the fire unless the ACAT has extended the time.

Party Walls

The Common Boundaries Act also deals with party walls (ss 27 and 28), that is, a wall on a common boundary which includes a wall that supports two buildings. The parties can agree on the erection of a party wall and the sharing of cost. If they cannot agree, either party may apply to the Planning and Land Authority (not ACAT) to determine the cost of erecting the wall and the appropriate sharing of cost. The amount either agreed between the parties or determined by the authority becomes a debt due to the party who incurred the expense of erecting the wall.

Animals

The Applicable Law

Inadequate control of animals can often be a source of conflict between neighbours. Some animals can be a danger to people or cause damage to the environment and must be strictly controlled. The legal responsibility of owners for their animals in the ACT is governed by legislation and the general law of negligence, nuisance or trespass. The old common law rules relating to cattle trespass, seizing a trespassing animal (called distress of an animal damage feasant), domestic animals on highways and whether certain animals are regarded as vicious have been abolished (Civil Law (Wrongs) Act 2002 (ACT) ss 212-215).

This treatment will only focus on the legislation relevant to neighbour disputes. If you are concerned about the plight of an animal, whether a neighbour's animal or not, contact the RSPCA.

The principal legislation is the Domestic Animals Act 2000 (ACT) ('the Domestic Animals Act'). The Act does not specify which court is appropriate for invoking measures under the Act.

Dogs

The Domestic Animals Act, having dealt with the extensive requirements for dogs to be registered and, in some cases, to be licensed as well, deals with control of dogs in Part 2 Divisions 2.5 and 2.6.

Offences

If a carer (the person in charge of the dog) or the keeper (owner) of a dog visits another person's house with the dog, the dog must be on a lead unless the occupier has consented to it not being on a lead (s 45(1)-(3). If a dog wanders onto premises without a carer then the owner commits an offence (s 45(5)). It is a defence to a prosecution if the owner took reasonable steps to prevent the dog from wandering.

The owner also commits an offence if his or her dog attacks or harasses a person or an animal (ss 49-51). There are defences, such as the attack was provoked or was in defence of the owner or the victim was on premises without reasonable excuse.

Compensation

Section 55 provides for compensation in the event of a dog attack or harassment. If--

(a) a dog attacks or harasses a person and the person suffers personal injury or property damage because of the attack or harassment; or

(b) a dog attacks or harasses an animal and the animal dies or is injured because of the attack or harassment

the owner of the dog is liable to pay to the person, or the owner of the animal, compensation for any loss or expense because of the attack or harassment. Compensation may be recovered whether or not a prosecution for an offence has been brought against the owner or the owner has been acquitted.

It is a defence for the owner to prove that the attack or harassment happened to the victim

(a) while the victim was, without reasonable excuse, on premises occupied by the owner; or

(b) the victim failed to take reasonable care for his or her own safety; or

(c) the victim provoked the dog.

In the case of animal attack or harassment, it is a defence for the owner to prove that the attack or harassment happened to the animal while it was on premises occupied by the owner or that the animal had provoked the dog.

This right to compensation under the Act does not affect any right that a person has to recover damages or compensation apart from the legislation.

Cats

The Domestic Animals Act regulates the ownership of cats in various ways but makes the assumption that a cat is not going to cause damage in the same way as a dog. Accordingly there is no specific provision dealing with compensation for damage or injury caused by a cat.

Animal Nuisance

The Domestic Animals Act provides for statutory measures if an animal's behaviour constitutes animal nuisance (Part 6). These could be invoked if, for example, a neighbour's dog barks persistently or a cat engages in frequent cat fights in the middle of the night. It does not apply in rural areas or to animal care facilities.

An animal nuisance occurs if the keeping or behaviour of an animal causes a condition, state or activity that constitutes--

(a) damage to property owned by a person other than the animal owner; or

(b) excessive disturbance to a person because of noise; or

(c) danger to the health of an animal or a person.

Allowing an animal nuisance to persist is an offence (s 110).

A person affected by an animal nuisance may complain in writing to the registrar (not named in the Act) -- see Contacts and Links-- who must investigate the complaint. If the registrar finds the complaint substantiated, he or she can issue a nuisance notice. Under s 112(2) the registrar must weigh a number of factors that reflect the common law of nuisance which has to strike a reasonable balance. The nuisance notice may provide for measures to be taken to lessen or eliminate the nuisance (s 112(4)). A copy of the notice must be provided to the complaining party (s 112(5)). Breach of the notice is an offence (s 112(7)). The notice may be revoked if the registrar is satisfied that the notice has been complied with and the nuisance has been sufficiently reduced or stopped (s 113).

Animal Trespass

If your animal strays onto your neighbour's land, it is likely that you will be responsible for any damage that it causes under common law principles. This is so if you were negligent or if you deliberately drove the animal onto the land. Negligence would depend on showing that you were in breach of a duty of care, for example, failing to maintain fences.

Animals on the Highway

People who own animals (including dogs) are under a duty to take reasonable care to see that their animals do not cause any damage by straying onto a highway.

If reasonable care is not taken and damage results, the owner is liable to pay compensation under the law of negligence.

Noise and Other Environmental Nuisance

Loud or persistent noise may be irritating, disturbing or quite unbearable -- disturbing sleep and causing stress. The law offers a variety of remedies but it is best to try talking first, particularly if neighbours are involved. Talking offers the best chance of a speedy and amicable resolution of a noise problem. Again, it may be helpful to get a third party or mediator involved to help sort out a solution to the problem.

The selection of the appropriate legal remedy will often depend on the nature and source of the noise. For some noise problems, more than one legal course of action may be available.

This section briefly outlines the general remedies which the law provides to deal with noise problems that can be shown to be a nuisance.

It also deals with the special controls which apply under the Environment Protection Act 1997 (ACT) ('the Environment Protection Act') to noise and other forms of environmental nuisance.

Private Nuisance at Common Law

Noise may amount to what the common law regards as a nuisance which entitles a person to take proceedings in the ACAT (see Nuisance). If the tribunal is satisfied that the noise complained of constitutes a nuisance, it can order the person responsible to stop or remove the nuisance. It can also order compensation to be paid. Each case will be judged on its particular circumstances. The notion of "reasonableness" is the guiding principle in a nuisance action and the courts have stressed that this involves striking a balancing of the competing rights of neighbours. In considering what is reasonable, the law does not generally take account of abnormal sensitivity.

As will be clear from what is available under the Environment Protection Act (see Noise and other Environmental Nuisances from Residential Premises),the common law of nuisance is the principal legal channel for taking action against noisy neighbours.

Noise and other Environmental Nuisances from Residential Premises

The use of lawn mowers, power tools, musical instruments, the barking of dogs, loud and constant arguments, air conditioning units and amplified music are common noise problems that affect people in neighbouring premises. When efforts to talk to the person responsible for the noise have failed, the provisions of the Environment Protection Act may provide some redress.

The Act s 22 provides a general obligation not to cause environmental harm or nuisance.

A person must take the steps that are practicable and reasonable to prevent or minimise environmental harm or environmental nuisance caused, or likely to be caused, by an activity conducted by that person.

"Environmental harm" means any impact on the environment as a result of human activity that has the effect of degrading the environment (whether temporarily or permanently).

More relevant to neighbour disputes is "environmental nuisance" which is defined to mean an unreasonable interference with the enjoyment by the public, a section of the public or a person of a place or area, if the interference caused or likely to be caused by--

(a) dust, fumes, light, noise, odour or smoke; or

(b) an unhealthy, unsightly or otherwise offensive condition because of pollution.

This definition covers both nuisance affecting the home as well as nuisance in public places.

However, s 22 is not particularly useful for neighbour disputes. This is because a failure to observe s 22 -- that is, a failure to "take steps" -- is not of itself an offence and does not give rise to any right to a civil remedy such as an injunction or damages (s 22(3)). It is possible under s 125 for an environmental nuisance to be the basis for an environment protection order breach of which is an offence. Such an order must be obtained from the ACT Supreme Court so is unlikely to be a useful remedy for neighbour disputes.

It is also possible for an individual to seek leave from the ACT Supreme Court to obtain an injunction or even compensation for breaches of the Act but leave will not be granted to a person who is not an official unless that person can show that the authorities have failed to take action and it is in the public interest to obtain a remedy (s 127(2)). Again this is very unlikely to be useful for ordinary neighbour disputes. Possibly these types of measures would be appropriate if the source of the environmental nuisance was industrial or commercial premises.

Section 141 does provide that causing an environmental nuisance is an offence and s 155 provides that this is a strict liability offence. It would be a matter for the police to follow up if a neighbour's conduct amounted to an environmental nuisance.

Liquor Licensing

Hotels, licensed or BYO restaurants or any similar premises are required to hold the relevant liquor licence under the Liquor Act 1975 (ACT). These licences are likely to contain a noise condition.

Apart form taking private action under the law of nuisance, as discussed above, any noise complaint involving these premises should be directed to the ACT Office of Fair Trading (see Contacts and Links for contact details). A complaint can be lodged by any member of the public under s 77. The grounds for a complaint include that the licensee has allowed the licensed premises to be used in a way that causes undue disturbance or inconvenience to people occupying premises in the neighbourhood (s 84(1)(c). The matter is then out of the hands of the complainant. The Fair Trading Commissioner must investigate and has powers to apply to ACAT for an "occupational discipline order" against the licensee. The commissioner is obliged to keep the complainant informed of how the complaint is being handled (s 83(1)).

Noise From Motor Vehicles

Apart from taking a private action in nuisance (see Nuisance), a complaint can be made to the police about noisy motor vehicles or motor bikes.

Contacts, Links and Resources

ACT Emergency Services Agency www.esa.act.gov.au/ESAWebsite/content_esa/about_us/about_us_home_page/about_us.html

ACT Commissioner for Sustainability and the Environment www.envcomm.act.gov.au

ACT Government Domestic Animal Service www.tams.act.gov.au/live/pets/domestic_animal_services

ACT Office of Fair Trading www.ors.act.gov.au/community/fair_trading

ACT Planning and Land Authority (ACTPLA) www.actpla.act.gov.au

ACT Magistrates Court www.courts.act.gov.au/magistrates

ACT Civil and Administrative Tribunal www.acat.act.gov.au

Canberra Connect www.canberraconnect.act.gov.au

Conflict Resolution Service www.crs.org.au

Commonwealth Department of the Environment, Water, Heritage and the Arts www.environment.gov.au

Environmental Defender's Office (ACT) www.edo.org.au/edoact

Housing ACT www.dhcs.act.gov.au/hcs/social_housing