Fallen Trees and Dividing Fences: Who is Liable?
The Greater Darwin region is still recovering from the damage caused by Cyclone Marcus. Local residents are now asking who is responsible for the cost of repairs to a dividing fence when the damage has been caused by a fallen tree from a neighbouring property during the storm.
The general legal position in the Northern Territory is that where damage is caused to a dividing fence, the owners of land on either side of the fence must equally contribute to the cost of the repairs. This includes damage caused by a natural disaster such as a cyclone. In this circumstance, the neighbour should be approached to discuss the damage and the appropriate repairs that need to be made to the fence.
A Notice to Repair can be served on a neighbour requiring them to contribute to one half of the repairs. The Notice to Repair must identify the part of the fence that is to be repaired and the nature of the repairs. The repairs must reinstate the fence as it originally was and should not include upgrades to the fence. If an agreement still cannot be reached, and a month has passed, the repairs to the fence can be completed and half the costs recovered from the neighbour.
There is, however, an exception if it can be established that the damage was caused by a neighbours’ negligence. If negligence is proved the neighbour must pay for the full cost of the repairs to the fence. But how can negligence be proved when it seems the tree has fallen because of severe winds in a cyclone?
Negligence can be proved if there was an obvious risk, before the cyclone, that the tree was likely to cause damage and the neighbour failed to do anything about it. Examples include noticeably dangerous trees that are decaying, falling down or losing branches, suffering termite infestation, trees that have been planted in an inappropriate environment or where complaints by neighbours have been made about the tree and ignored. Neighbours may also have an obligation to inspect a tree if there is something to indicate it could be dangerous for example when building work has occurred too close to the tree and caused damage. However if the tree appears to be healthy and an inspection would not have revealed any obvious danger, the neighbour will not be negligent.
If it can be proved a fence was damaged due to a neighbour’s negligence the neighbour must repair the fence. If after a month the fence has not been repaired, the fence can be repaired and the costs recovered from the neighbour.
It should be noted that negligence would be difficult to establish in this circumstance as it must be proved something other than the cyclone contributed to the tree falling down. Whether a neighbour is negligent will depend on the individual circumstances of the case and independent legal advice should always be obtained.
Any disputes that arise in relation to repairs to a fence can be taken to the Northern Territory Civil and Administrative Tribunal. For more information visit: http://ntcat.nt.gov.au/.
The advice provided in this article is of a general nature only and should not be substituted for obtaining your own independent legal advice. If you think your fence has been damaged due to a neighbours’ negligence please contact Ward Keller on (08) 8946 2999 or firstname.lastname@example.org for further advice.