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We understand that disputes with a neighbour can be unexpected, disruptive, and can arise over the smallest of issues. Usually, both parties begin with the best of intentions but the situation can often turn bad, fast. Whether a dispute is about trees, dividing fences, noise, animals, smells or otherwise, we know just how important it is to settle neighbourhood disputes quickly and with minimal disruption.
Knowing what to do when legal problems arise with a neighbour is crucial. Generally, there are three stages to resolving neighbourhood disputes, being informal means (i.e. having a conversation with your neighbour about the problem), followed by mediation, and if worst does come to worst, resorting to more formal dispute resolution such as court proceedings.
What are the most common Neighbour disputes?
Noise complaints are common. In NSW, generally noise disturbances are referred to either the police or the local council. In circumstances where the noise is beyond what is acceptable, the person who is responsible for the noice may have infringed a by-law, or even broken the law.
In New South Wales, noise abatement orders are able to be obtained from the local council or the Local Court, in certain circumstances.
In NSW, disputes over the placement or affect of a tree is governed by the Trees (Disputes Between Neighbours) Act 2006 (NSW). The Act generally governs how neighbourhood disputes involving trees are to be managed, and the circumstances in which a Court may be required to intervene.
The first thing to do if you have concerns over a tree interfering with your property, is to politely engage with your neighbour about your concerns. In most circumstances, it may also be worthwhile checking with the local council to ensure there are no preservation orders in place in respect of that particular tree.
Generally, you are entitled to cut back any part of a neighbour’s trees where overhanging branches are above your property. You must be careful however not to damage the tree, as any damage to the tree could mean you are liable to the property owner (just as any damage caused by the tree to your property could be claimed from the property owner).
In circumstances where a tree needs to be removed or cut down, it is important to speak to the property owner about how you might share the costs of doing so. Failing an agreement, an application to NCAT or the Local Court for the removal of the tree under theTrees (Disputes Between Neighbours) Act 2006 (NSW) may be possible.
Animals are capable of making noise and in some situations, property damage. Pets are extremely popular in Australia’s cities and so any nuisance caused by animals being kept by your neighbours must be balanced against the entitlement of people to own companion animals.
In New South Wales, neighbourhood disputes involving nuisance caused by pets are generally determined under the Companion Animals Act 1998 (NSW). That Act provides for when pets can be deemed a nuisance to your neighbours (i.e. because of having caused property damage or excessive noise).
As with other forms of neighbourhood disputes, it is always worth speaking to the owner of the animal where you have a complaint. Where a dispute arises and you are unable to resolve it by talking to the owner, you are able to contact your Local Council.
If you are the owner of an animal that may be causing a nuisance that is disrupting the peace of your neighbours, be aware that there may be significant fines for failing to comply with any orders in respect of that nuisance (up to $1,650).
Dividing fences and fence disputes
A very common form of dispute between neighbours, particularly in city neighbourhoods in Australia, is a dispute over dividing fences. In New South Wales, fence disputes are also governed under statute, namely the Dividing Fences Act 1991 (NSW).
In most local Council areas, restrictions and/or regulations will often determine the types of fences which are permitted, and so if there is a need to repair a fence or build a new fence, it is worth contacting your local council to ensure that you are complying with those regulations.
Under the NSW statute, property owners of neighbouring properties will be jointly responsible for the costs of erecting a sufficient dividing fence and any associated fencing work. Again, it is worth looking into what would constitute a sufficient dividing fence, as this will often depend on what the standard of the existing fence is, the uses of both neighbouring properties, any privacy concerns and any relevant local council regulations or by-laws.
In circumstances where one property owner of neighbouring properties wishes to have a particularly expensive form of fence that goes above what would be sufficient, then that property owner will generally be responsible for the additional costs associated with that additional fencing work.
Usually, adjoining property owners can come to an agreement about the repair or replacement of dividing fences. Where they are unable to do so, the Dividing Fences Act allows property owners to serve a “fencing notice” upon a neighbour which proposes the details of the fencing work, and the likely cost of each neighbour. A failure to agree on the basis of a fencing notice will mean you are likely entitled to obtain an order from the Local Court.
What to do if you have a problem with your neighbour?
If any of these problems are familiar to you, you may be wondering what to do and who to speak to about resolving the matter. In New South Wales, generally neighbour disputes will be resolved through mediation or alternative dispute resolution such as through the NSW Civil and Administrative Tribunal (NCAT) or a Magistrates Court, having regard to local council by-laws and relevant statute such as the Companion Animals Act or Fences Act.
What resources are available to parties to a neighbourhood dispute?
There are a range of State government factsheets, FAQ’s and sites designed to assist parties to a neighbourhood dispute to manage any of the above. For example in New South Wales, the Department of Communities and Justice have a number of online resources designed to assist with the cheap, quick and just resolution of common disputes such as those involving neighbours.
In most states in Australia, there will also be a copy of The Law Handbook available which covers a range of common legal disputes and how they should be resolved. If you have any questions or would like more information, please also do not hesitate to contact our expert civil lawyers for a free consultation about how we might assist in mediating your dispute and/or representing you if you are unable to come to a satisfactory resolution.
The above is general information only and should not be considered legal advice. You should contact our law firm for legal advice tailored to your specific legal matter. The courts and administrative tribunals deal with matters on a case-by-case basis. It should also be noted that there may be court delays due to Coronavirus and alternative arrangements made for legal proceedings.
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Frequently Asked Questions.
As opposed to criminal proceedings, there are a few advantages to civil claims. First, the standard of proof required to prove that sexual abuse occurred is lower. All that is required is that you show it is more likely than not that the sexual abuse took place. Secondly, civil litigation allows survivors of sexual abuse to seek compensation in the form of damages. These damages are not limited in the way victims support services or national redress schemes are. Thirdly, civil claims can be made against an employer or institution if it can be proven that the organisation was negligent in allowing the sexual abuse to take place. This often increases the compensation available to sex abuse victims.
No. A civil claim is entirely separate to criminal proceedings, and you may prove a civil claim even in the absence of any charges being laid upon the perpetrator of sexual abuse. Such charges or convictions do however assist in establishing a civil claim.
For advice on whether a civil claim might be right for you and for more information on our legal services, please contact our experienced personal injury legal team for a free consultation. We can guide you through how the legal processes might apply to your matter, and whether you may be entitled to make a compensation claim for any physical abuse (including sexual abuse) that you may have suffered.
If a civil claim is successful in establishing liability, a victim of sexual assault is entitled to make a compensation claim for damages for a range of loss and/or damage, provided that loss or damage is also proven. These include pain and suffering, loss of earnings, mental harm, any medical or treatment costs, among others. For a confidential discussion of what compensation you may be entitled to, contact our experienced personal injury lawyers today.
Unfortunately, claimants in respect of historical child sexual abuse under the National Redress Scheme cannot also pursue a civil claim for damages.
This will depend on the time limits applicable in your jurisdiction, the nature of the claim, and the legal processes available to you. If your matter relates to child sex abuse (generally, including physical abuse), no time limits apply to the bringing of a civil compensation claim.
For personal injury claims for sexual assault, limitation periods will generally be three years from the date of the offence. This can however be complicated by a number of factors such as whether the abuse is isolated or ongoing and where the abuse took place, and we recommend seeking legal advice on whether you remain entitled to make a compensation claim.
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