How do I navigate a disaster-related dispute with my neighbour without going to court?

What is this resource?

This resource is for people in Australia who:

• have been impacted by a disaster or are at risk of being impacted by a disaster; and

• have a neighbour whose actions have increased or will increase the risk of being impacted by disaster.

This resource explains some steps you can take if you have a problem with your neighbour before or after a disaster, without going to court. It also explains what options are available to you if you cannot resolve a problem with your neighbour through discussion.

What is my neighbour allowed to do on their property?

Sometimes, disasters can create or make worse problems that you might be facing with your neighbour. These problems might arise because a neighbour’s action(s), or lack thereof, increase your risk of being impacted by a disaster. They might also arise when you are recovering from a disaster, for example, when rebuilding fences or fixing up damage around your home.

There are various laws which govern the action(s), or inactions, of a person in relation to their property, both at the local and state/territory level, and the application of these laws often depend on the type of property in question. However, generally, everyone owes a duty of care to their neighbours and is responsible for taking reasonable precautions to prevent reasonably foreseeable harm to their neighbour or their property.  

Where do I start if I have a problem with my neighbour?

The first step you should take to resolve a problem with your neighbour is to speak to them directly about the problem and try to resolve it together. It is important that you raise the problem with your neighbour with them as soon as possible after it arises, as it may be that the problem is a misunderstanding that can be resolved quickly.

Resolving disputes early is usually better than having a long and stressful dispute. However, sometimes to resolve a dispute you may have to compromise, and being open to compromise is a good approach when talking with your neighbour directly.

Do I need to keep records of my problem with my neighbour?

Documenting evidence

Its generally recommended to copies of any correspondence with your neighbour, including emails and text messages. Its also recommended that you take photographs and/or videos of any visible damage or of hazards. These can be very important to navigating your dispute, especially if damage is yet to occur. You should take them as soon as possible and consider making backups of them.

Documenting agreements in writing

If you can reach agreement by talking to your neighbour, it is important that any agreement is documented in writing, including any agreed upon decisions, timelines, or payments. When confirming the agreement in writing, you should make sure that any correspondence is dated and that you keep a copy of it. If you cannot have a signed agreement, then text messages or emails can assist in making it clear what each party is agreeing to do. You should keep copies of any relevant communications between yourself and your neighbour and consider sending copies to someone else as a backup.

What can I do if I can’t reach an agreement with my neighbour through discussion, but don’t want to use a formal dispute resolution process?

If you can’t reach an agreement with your neighbour through discussion, there are various options available to resolve the issue which do not involve going through a formal dispute resolution process or court.

Generally, what options are available will depend on the type of issue in dispute, how urgent it is, and whether damage has occurred yet.

Common types of damage that can cause issues between neighbours

Bushfire hazards

Local fire services are generally able to provide you with information about bushfire preparation which can assist both you and your neighbour.

If your neighbour is unwilling to remove a bushfire hazard after you have spoken to them about it, you can make a formal complaint to the fire authority responsible for your local area. The relevant fire authority can then direct your neighbour (or the property holder if it’s someone else) as appropriate to remove the hazard.

If your neighbour does not remove it after being directed to by the relevant fire authority, the fire authority may remove it themselves and pass on any associated costs to your neighbour (or the appropriate property owner).

With respect to removing any part of a tree that is encroaching on your property, you should check with your local council to confirm that you do not require special permission first. If it is permitted to do so, and you cannot reach an agreement with your neighbour about removing branches or roots which encroach on your property, you may cut those which cross the fence line into your property and carefully return them to your neighbour.

Fencing

If your problem with your neighbour stems from issues relating to rebuilding or repairing a shared fence that’s been damaged by a disaster, you may prepare and serve (formally give) your neighbour a fencing notice which outlines your proposal to repair or construct a fence. The requirements and notices available vary depending on the state and territory that you are in, however they will generally require you to set out the details of the work to be done, the estimated cost, and the division of payment. The notice also acts as a first step in seeking an order from a court in relation to the fence if you and your neighbour don’t agree.

Flooding

If something about your neighbour’s property is causing a flood risk to your property, you may contact your local council to advise them of this. In many cases a council can issue orders or directions for your neighbour to address the issue that is causing the flooding to your property.

What other options are available if I don’t want to go to court?

If you are unable to resolve your problem with your neighbour by discussion or by asking someone else to get involved, such as the fire authority or your council, you can commence Alternative Dispute Resolution (ADR).

ADR describes a range of processes which can be used to resolve a matter without going to court. It is most time and cost effective to attempt to resolve your dispute with your neighbour through ADR before commencing proceedings in court. The most common types of ADR are negotiation, mediation, conciliation and arbitration. We provide additional information on each type below.

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 negotiate by talking to your neighbour directly, or through writing.

If a negotiation is successful, it is essential that a written record of the agreement is made and that the parties seek to enter into a binding legal agreement as soon as possible afterwards. This should be a record of what each party is agreeing to do, and when they will do it.

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.

If the parties agree at the end of mediation or conciliation, a written record of that agreement should be prepared and signed by the parties (and the mediator or conciliator where appropriate).

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.

Which option is best for me?

The ADR options have different characteristics, so it is important to obtain legal advice on which would suit your particular situation and circumstances. For example, you may wish to consider factors such as time, cost, whether you want an independent third party involved, and whether you want to control the outcome or have someone else decide it for you.

What if I an unhappy with the ADR outcome or if the dispute is still not resolved?

If you are unhappy with the ADR outcome or if your dispute is still not resolved you should seek legal advice about your options, including whether commencing court proceedings would be appropriate. Read the section “Where to get help” for more information about where to get help.