General Legal Matters - Information Pages

Disputes Between Neighbours

The information contained on this page is not legal advice. If you do have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in, or affected by, the laws of South Australia, Australia only.

Unlike marriage, the neighbour relationship is not in itself a creature of law. And probable for this reason, there is no such thing as a discreet body of neighbour law. The law relating to neighbours is to be found in a variety of sources, and mostly in common law. This paper attempts to provide a brief overview of neighbour dispute resolution and law.

The neighbour relationship in suburban Adelaide

People can be neighbours for a very short time or a very long time. Some people move house quite frequently. Others live in one house for most of their lives and grow up with neighbours. Relationships between neighbours vary widely – they can be non-existent, distant or intimate, amicable or hostile. Whenever people live near each other, their activities and alterations can cause annoyance and conflict. This of course applies within the same household, or workplace, as well as between adjacent households.

With urban consolidation, many neighbours are now living closer together than, say, fifty years ago. That is in a physical sense. Due to greater mobility and involvement in work and leisure pursuits away from the home, people are less likely to form relationships with neighbours than before. Generally speaking, neighbours have moved socially further apart.

When a conflict develops between people who have very little relationship, or a negative relationship, it is less likely that the conflict will be dealt with constructively: there is not as much to lose, not as much incentive to be considerate. The chances are today that neighbours in conflict will be strangers. The trouble is they don’t go away easily either.

Common strategies for dealing with conflict

There are a number of well-recognised strategies for dealing with conflict.

(1) Avoiding or ignoring the problem, or withdrawing from the situation

(2) Giving in, putting up with it, accommodating the inconvenience or interference

(3) Forcing or trying to force the other party to do what you want them to do, either by physical violence or the use of legal authority or superior position

(4) Seeking a compromise which involves mutual concession in order to get part of what you want in return for the other party getting part of what they say they want.

(5) Exploring interests in order to clarify what people need and see if there is some way they can all achieve that

My experience is that people in Adelaide generally adopt the same approaches to neighbour conflict as people in the United States. In her book “Peacemaking in Your Neighbourhood”, Jennifer Beer describes the neighbour conflict strategy preferences of people in Delaware County. Depending on the importance of the relationship, people will avoid or accommodate annoyances for some time. Some try to talk to each other, usually depending on the existence of an established relationship. Otherwise, or if this fails, people go to officials. They cross what she calls the ‘Great Divide’ from a private to a public dispute. They have a strong expectation that their rights, particularly to privacy, safety and security, will be upheld. Similar findings were made by Suzanne and Leonard Buckle in research on a community identified only as “Johnson Square”. In Australia, we are all very conscious of paying taxes in the expectation of government services. Officials have to help because in a sense they have been pre-paid to do so. In the context of neighbour disputes, it may well be that they are unable to help directly, because the dispute is a common law matter with only a private civil remedy. People generally do not like to be told they have to initiate legal action themselves. In any case, if they do take legal action, there is a very real danger of a negative relationship developing, which can produce conflict over other issues as well. In my experience, litigation invariably escalates and entrenches conflict.

A Pathology of Unresolved Conflict

All human conflict is about interests, which include needs, wants, fears, preferences etc. a conflict is an antagonism of interests: what one wants is or appears to be inconsistent with what the other wants. Interests in themselves are only preferred possibilities for the future, so conflict can be almost academic. The problem is, that we all share a physiological sensitivity to changes in the future prospects of our interests. That physiological sensitivity is called emotion. And the basic function of emotion is to make us physiologically ready for action.

What we need to do to resolve conflict is talk, but our bodies incline us to action because of emotion. Usually that action is avoidance or confrontation. Either of these can threaten further interests of the other party, such as peace and quiet, security, peace of mind etc. Other conflict issues emerge and conflict escalates. A mediator or conciliator will need to get parties in conflict to set aside other strategies which are likely to threaten further interests, and, speaking only about themselves, clarify their own interests so it can be determined whether their interests are compatible.

If conflict escalates by the multiplication of issues in dispute, it can get to a point beyond negotiation. There are three identifiable situations which are beyond negotiation.

(1) Catastrophe – death, major injury or major irreversible damage of a degree which precludes any form of useful communication. This is because all appears lost already.

(2) Entrapment – a situation where a party has invested so much energy and/or resources in pursuing their goals that they are psychologically compelled to keep going at any cost, so as to avoid the loss of their ‘investment’. The person’s interests are all tied up in the exercise.

(3) Feud – where each party identifies the other as the problem (as distinct from the initiator of problems) to the degree that everything they do becomes a threat, including existing. Invariably, this involves respective characterisations of evil and madness, and an almost total loss of a sense of their own interests.

Psychological counselling is required to get parties in these situations to a point where they can negotiate.

The role of the first contact adviser

People in dispute with neighbours who contact officials or legal workers are about to cross Jennifer Beer’s “Great Divide”. But in most cases, they will be able to go back. In some cases, they will have to do so because the legal system provides absolutely no solution eg. unsightly vegetation on the other side of the fence, or shading by buildings. If a ‘legal’ solution is available, the risk of escalation may offset the potential convenience. So a wise first contact adviser will attempt to help an enquirer make a rational decision about all the options of approach. This I suggest should include the following:

(1) Listen to the person. Make sure they fully appreciate you are listening to what they say. Check what you have heard in a summary.

(2) Focus their attention on their needs and interests. Conflict, philosophically, is only about interests: it makes sense to go to the source of the problem.

(3) See if you can identify practical steps towards finding out the other party’s interests and whether they might be compatible.

(4) When talking about legal causes of action, emphasise the rights-balancing concepts which are so fundamental to the common law. In a sense the common law represents the accumulated wisdom of people who are called upon to resolve disputes where all else has failed (or not been tried). Concepts such as common property (eg. a fence), trespass (keep on your own side of the fence) and nuisance (keep your things on your own side) are very much about fairness and ensuring the peace.

Broad outline of the types of legal remedies (using behaviour problems as examples)

If noise from people and machines is included, human behaviour is usually found to be the largest category of neighbour disputes (followed by fences, trees, dogs, draining and association problems). Quite often, problems can be attributed to behavioural disorders and mental impairment. Children's behaviour is another significant sub-category of special interest. I will use examples to illustrate the different kinds of legal remedies which may be available.

In advising about most kinds of neighbour disputes, it is wise to consider, first of all, whether a negotiated solution is possible. The next question is whether there is a legal remedy available. Legal remedies fall into four main categories, any of which may be relevant in most neighbour conflicts.

(1) Private civil action

If there is a legal remedy at all, this is the likely category. The difficulty is usually that the complaining party will not want to take the action themselves: they would rather have an official take responsibility. Besides, with a private civil action, the complaining party, or plaintiff, will need to put before a court evidence to prove each element of a cause of action on the balance of probabilities. The most common causes of action in neighbour disputes are trespass, nuisance and negligence.

A trespass is a direct, physical form of interference, invariably intentional, with the person or property of the neighbour. Examples are assault and battery, false imprisonment, conversion of goods, trespass to land. Actual loss from the interference need not be proved.

A nuisance is usually more indirect, and involves an unreasonable and substantial interference with the neighbours right to enjoy their property. Examples are ‘watching and besetting’ (picketing), persistent annoying phone calls, noisy or dangerous activities, such as frequent hitting of cricket balls over the fence, drunken parties or the use of power tools.

Negligence is a form of action for carelessly caused damage. It is most often associated with car accidents and claims against professional service providers. Reasonably foreseeable damage or loss must be shown to have been caused by the neighbour’s actions in a negligence action or it can be imminent in a nuisance action as an alternative.

A simple example will serve to clarify the differences. If a person squirts their neighbour with a hose that may be an assault. If they allow their sprinkler to spray water on to the neighbour’s freshly painted furniture in the driveway, that may be negligence. If they leave their drains blocked so that stormwater floods under the fence that may be a nuisance. All trespass and nuisance actions between neighbours may be commenced in the Small Claims Jurisdiction of the Magistrates Court. Only negligence actions for less than $6,000 can be commenced there.

(2) Criminal Prosecution

Serious assaults, theft and unlawful damage committed against neighbours are criminal offences. Fortunately they are not common between neighbours. Other less-well-known offences include depositing rubbish on private land without consent, telephone harassment and playing games in or near a public place so as to be likely to cause damage. Police officers tend to place a priority on ensuring there will be no breach of the peace in cases where the offence is fairly trifling. They will often attempt to conciliate and give warnings.

(3) Administrative Action

Planning decisions are the form of administrative action by authorities which are most likely to affect neighbours who are private owners. Tenants and members of housing associations or cooperatives may be amenable to other forms of intervention eg. complaints leading to warnings, re-location or applications for terminations. The introduction of s90 of the Residential Tenancies Act enables neighbours to short-cut such processes and apply directly to the Tribunal for termination on nuisance grounds.

(4) Restraining orders and similar notices

A restraining order is made by a court under s99 of the Summary Procedure Act, usually on application by the police. There must be ‘reasonable apprehension that the defendant may, unless restraining, cause personal injury or damage to property, or behave in an offensive or intimidating manner’. Behaviour such as loitering, trespassing or keeping under surveillance ‘so as to reasonably arouse … significant apprehension or fear’ will, if repeated, be sufficient to amount to ‘intimidating or offensive’ behaviour. But the Court must also be satisfied that it is appropriate to make the order.

Councils also have compulsory notice powers under various pieces of legislation such as the Public and Environmental Health Act, the Dog and Cat Management Act and the Local Government Act. People served with a compulsory notice may be prosecuted for non-compliance. Generally though, they do not apply to human behaviour.

In any one neighbour dispute, several types of remedies may need to be considered. For example, if a neighbour is stealing bricks, a small claim for conversion, criminal prosecution, or a restraining order are possibilities, or perhaps a call to Council about whether the neighbour has the appropriate approval for a building project.

In most neighbour cases, the authorities will be keen to determine whether a negotiated solution is feasible. The Civil Division of the Magistrates Court has its own mediation program, and a final notice scheme, which strongly encourages alternative dispute resolution. Councils and even prosecutors are similarly inclined. Magistrates will often adjourn restraining order applications to enable the parties to try mediation. Advice about the categories of remedies described above should, if at all appropriate, include this point.

Fences: Common Property

Most of the law about fences is common law. It contains a number of very useful principles:

(1) there is no general legal obligation to have a boundary fence at all (like much of middle America)

(2) either neighbour is entitled to erect a boundary fence themselves, at their cost

(3) if a fence is constructed on the boundary it will be common property, irrespective of who paid for it (until it comes down)

(4) neither joint owner of a boundary fence is entitled to remove it or damage it substantially without the other’s permission. Otherwise they can be liable for compensation for trespass, including exemplary damages.

(5) There is no general duty to repair a boundary fence and no general right of entry next-door to carry out repairs.

The Fences Act provides a system of exchange of notices to facilitate agreement on fencing work and to enable urgent work to be done. A notice must be served if the owner proposing the work is seeking a contribution, or if an existing fence is to be removed or altered. All this is well-covered in the booklet ‘Fences and the Law’.

The common property factor in fence disputes is invariably useful in resolving them, and should be uppermost in the adviser’s mind when dealing with such matters.

Trees: a balance of interests between land owners

Once again, the relevant law is canvassed in ‘Neighbours, Trees and the Law’. The key to understanding the common law is to recognise that trees are in law part of the land on which they grow, and that the common law must balance the interests of the adjacent owners.

(1) if a tree stays on its own land, there is nothing a neighbouring owner can do about it. If the neighbour damages such a tree it will be an unlawful trespass. A common example occurs with people leaning over the fence to cut a tree they don’t like.

(2) If a tree grows across the boundary into neighbouring land, there is a technical, legal nuisance. The affected neighbour can cut it off at the boundary line provided that:

The cuttings are returned (to avoid liability for conversion)
They cut no further than the boundary (to avoid liability for trespass)
They exercise reasonable care and skill so as not to unnecessarily damage the tree (to avoid liability for negligence)
Civil claims for compensation or injunctions are a last resort.

(3) If a tree falls over the boundary (e.g. in a storm) the owner will only be liable for negligent management.

The challenge in explaining all this to irate neighbours is to convey the simple common sense implicit in centuries of experience. I have heard that Local Government Act s299 notices, on the other had, were introduced on the basis of the experience of a single case.

John Steele

Back to top

Back to General Legal Matters