How to help your client navigate a dispute with their neighbour before, during or after a disaster

What is this resource?

This resource is designed to support community workers and volunteers to connect disaster affected communities with appropriate services. It will help you identify when someone you’re supporting has a legal problem related to a dispute with their neighbour, suggest first steps and refer them for legal support before their problem escalates.

We refer to community members you are supporting as your ‘client’ throughout this resource.

What rights does someone have against their neighbour?

There are various local laws which govern the actions (or inactions) of a person regarding their property, both at the local and state or territory level. However, generally, everyone owes their neighbour a duty of care and is responsible for taking reasonable precautions to prevent reasonably foreseeable harm to a person or their property. If this is not done, then a person may be liable to their neighbour for the damage.

How can you assist a client in communicating with their neighbour to try and reach a resolution?

The first step that you should take is to encourage your client to try to resolve the problem with their neighbour by speaking with them about it.

It is usually going to be best to come to an agreement with a neighbour, even if the client has to make some compromises. Lengthy and unpleasant disputes between neighbours can be difficult and cause other problems for people. They can take time to resolve, be stressful and can involve additional costs. While those delays take place, the problem may remain unfixed. To avoid those issues, the best approach is to negotiate a resolution where possible. Try to encourage your client to negotiate a resolution and be willing to compromise.

However, even with a willingness to compromise, resolving the dispute this way may not be possible. Sometimes, using an independent community member to assist in the discussion process could help. You could suggest they engage a Justice of the Peace, a counsellor or someone known to the parties who would be willing to facilitate and assist with a conversation at no charge, or for a small fee.

What if my client cannot reach a resolution through discussion?

If your client is not able to reach a resolution with their neighbour through discussion, you can suggest that the client:

1. writes to their neighbour to explain the issue and suggest some options,
2. if this is unsuccessful, seek help from other bodies (such as their local council or the Rural Fire Service), and
3. if this is unsuccessful, approach a legal centre and request more assistance and/or advice on further options. See the section “How to refer your client for legal help” below for more information.

If the actions or inactions of your client’s neighbour has increased the damage or likely will increase the damage suffered by your client if they’re impacted by a disaster, and your client is not able to reach a resolution with their neighbour through discussion, then what you can do as a community worker will depend on the type of damage. 

Common types of damage that can cause issues between neighbours

Fencing

Disasters often give rise to neighbour disputes over fencing problems. If a fence has become damaged and needs to be fixed it is a reasonable expectation to request that both neighbours equally share the cost. However, often neighbours refuse to assist and to pay.

If neighbours cannot come to an agreement, the next step for the client is to prepare and serve their neighbour with a fencing notice which outlines the proposal to repair or construct a fence. The requirements of the notice will vary depending on the state or territory.

After serving their neighbour a fencing notice, your client must then wait for a reply from the neighbour. Time limits will vary in different states and territories, but the client usually needs to wait around one month for a reply. If, after this time, there is no reply, the client can apply to the Local Court or in some states, a tribunal for a fencing order. 

Flooding

If there is an aspect of the neighbour’s property or something that the neighbour is doing with their property that has caused flooding for a client or is impacting the flow of water across the land, your client should firstly discuss the issue with their neighbour and see if a resolution can be reached. This might include assisting to perform works on the property to prevent further flooding.

If this is unsuccessful, your client can contact their local council to raise the problem.

The council may then get involved and can issue orders or directions for the neighbour to address the issue.

Bushfire preparedness

If a client notices that their neighbour has not prepared well for the bushfire season and is concerned, the first step for them would be to speak with their neighbour about the issue to try and agree on a way forward.

If dissatisfied with their neighbour’s response (for example, because they do not wish to remove hazards or take any steps), you can tell your client that they are able to get advice from their local Fire Control Centre.

You can also explain that they are able to make a formal bushfire hazard complaint to their local Rural Fire Service, who will then inspect the hazards.

What supporting evidence and documentation should my client keep or collect?

It is important that your client keeps records of any communications they have with their neighbours. This may include copies of:

• letters
• emails, and
• text messages.

It is also important to take pictures or videos at the time that things are happening. Encourage your client to take photos and videos, and to back them up. If the matter does proceed to court, then these would be useful evidence.

What is Alternative Dispute Resolution?

Alternative Dispute Resolution (ADR) includes various processes which can be used to resolve a matter without going to court. The most common types of ADR are negotiation, mediation, conciliation, and arbitration.

These processes would be used by your client if the dispute cannot be resolved through other means and before going to court. However, they can be used at any time during the dispute, including before legal proceedings have commenced, during legal proceedings and afterwards.

Some common types of ADR include:

1. Negotiation

Negotiation is an informal process where each party sets out what they want to achieve and tries to reach an agreement with the other side. This can be done between the parties individually or with assistance from legal representatives (if lawyers are involved). It can also be done between the parties’ legal representatives entirely.

You can emphasise to the client that negotiation is a great place to start when trying to resolve issues with their neighbours, and that if they are successful, a written record should be made of what the parties are agreeing to.

2. Mediation and conciliation

Mediation and conciliation are both confidential processes which involve an independent third party (the mediator or conciliator) helping people in a dispute to identify the disputed issues, develop options, consider alternatives, and try to reach an agreement. This is usually done in the format of a meeting with the parties and the mediator or conciliator, either in person or by telephone or video conference.

The main difference between mediation and conciliation is that a conciliator will generally have specialised legal knowledge in the area of dispute, can provide advice and actively encourages the parties to reach an agreement. Conciliation is also generally used if mediation has been unsuccessful.

You can explain to clients that this is usually a further step if negotiation has not worked and is a good alternative to going to court. It can be important that relationships with neighbours remain amicable, given that the parties may live next door for many years to come.

3. Arbitration

Arbitration is often a much more formal process than negotiation, mediation and conciliation, as it involves the parties presenting arguments and evidence to an independent third party, the arbitrator. In some ways, it is similar to a court proceeding, and the arbitrator will make a decision that is legally binding on the parties.

Arbitration is generally useful where mediation and conciliation have not led to an agreement, and it is generally quicker and cheaper than going to court. It can involve expense and usually involves lawyers, which means that there are legal fees to be paid.

When explaining this process to a client, it is important to say that this would only be used in more complex matters where all other avenues for redress have been explored and have been unsuccessful.

How to refer your client for more legal help

If your client is unhappy with the ADR outcome or if the dispute is still not resolved, they should seek legal advice about their options, including whether commencing court proceedings would be appropriate. We list services that you can refer your client to below.