Mar 252013
 

Strategic Planning of Boundary Walls and Fences

Fence Palasaide Steel s Boundary Walls and Fences

A steel palisade fence on the street side boundary.

Boundary walls and fences are one of the most controversial topics facing homeowners. We are constantly contacted by people from all parts of South Africa who want advice – or have some sort of problem – relating to boundary walls and fences – often because neighbours have erected something that is offensive or clearly illegal.

There are laws that relate to boundary walls and fences, but more importantly, you need to check the boundary walls and fences policy followed by your local authority. Ultimately what you can and cannot do is up to them.

Boundary Walls and Fences and the Law

The two most important issues here are the position of boundary walls and fences, and ownership.

Positioning Boundary Walls and Fences

All properties are surveyed and pegged when land is zoned for residential use. But as soon as the land is built on, generally the pegs are removed. This is why it is so important to ensure that boundary walls and fences are correctly positioned in the first place. If there is a dispute between neighbours at any stage (and they could be completely different parties to those who owned the two properties when the wall was built), it may be necessary to get a land surveyor to resurvey the property according to the official diagram that is lodged with the Surveyor General in Pretoria.

If you decide to build a wall or erect a fence on the boundary, you may do so provided it is on your property. And this includes the foundationswhich of course will be wider and longer than the wall itself. The structure will then belong to you. [See minor building work for walls and fences that do not require plans.]

The law also protects the structure from any action that may threaten its stability. For instance your neighbour may not dig down next to your wall on his/her side if this is likely to wash away the earth if and when there are heavy rains. If he/she does some sort of excavation, they will need to erect a retaining wall (which will require plans) or some other structure that provides lateral support to the wall.

Ownership of Boundary Walls and Fences

Often, however, neighbours agree to share the costs of boundary walls and fences, in which case ownership is also shared.

In the absence of proof that a boundary wall is wholly on one or other property, ownership is usually presumed to be shared. Some local authorities state that each side is then owned by the property owner on each side; others say that the wall is owned jointly. If ownership is shared either way, neither owner may do anything to the wall – ie they may not raise it, lower it or break it down – without the other neighbour’s permission. If the structure is damaged in any way, both must share the cost of repair.

There are different laws that apply in agricultural areas (farmland).

Local Authority Boundary Walls and Fences Policies

While every local authority has its own policy for boundary walls and fences, there are many similarities. The information give here is based on the official policy of the City of Cape Town, drawn from a document that was published in 2009.

The official document Boundary Walls and Fences Policy acknowledges the fact that all fences and boundary walls that front onto public streets are “highly visible” and therefore have a direct bearing on the character as well as what they term the “visual amenity of neighbourhoods”.

Driven by an increased need for security, more and more homeowners are tending to install security devices on top of boundary walls and fences in an uncontrolled and haphazard manner. These devices take various forms and include different types of electric fencing, as well as razor wire, barbed wire and various kinds of ugly (though effective) spikes. Because of this, the City of Cape Town devised its policy in 2009, formally identifying which security devices may be utilized – and which should not be permitted.

At this stage, the City of Cape Town’s Building By-laws prohibited the use of certain materials including galvanized iron sheeting and asbestos sheeting (though it should also be noted that no asbestos materials may be used for building anywhere in the country), and barbed wire on street boundaries, but they did not make any provision for controlling security devices. While historically, the Occupational Health and Safety Act controlled the technical aspects of the installation of electric fences, there was no provision in the City’s Scheme Regulations to control the installation of security devices.

Their Boundary Walls and Fences Policy attempts to control the appearance of boundary walls and fences and the installation of security devices on top of walls and fences. They also point out that this policy precedes the formulation of a by-law.

The City of Cape Town’s Legal Mandate

As they state, boundary walls are considered to form part of municipal planning, which is a local authority competency in terms of Part B of Schedule 5 of South Africa’s Constitution. Note that this is why the decisions relating to boundary walls and fences are ultimately left to the local authority to decide.

In Terms of Section 156 of the Constitution, municipalities (or local authorities, including the various Cities – specifically Cape Town, Johannesburg, Durban etc.) have the power to make and administer by-laws that will ensure the effective administration of all the various matters they have the right to administer – in this case, policies that relate to boundary walls and fences.

There is no provision made in the National Building Regulations to control the appearance and height of boundary walls. For this reason, control of the appearance and height of boundary walls has become part of municipal planning country-wide.

Rationale and Justification for By-laws Relating to Boundary Walls and Fences

Complaints Relating to Safety

In the absence of a standard policy throughout the city, or relevant by-laws dealing with these matters, The City Council stated that it was receiving complaints from members of the community concerning safety issues surrounding the installation of electric fences in particular. Specifically, concerns related to the safety of children and accidental contact with the live wires.

Complaints had also been received about the use of unsightly materials and the adverse impact that this has on the character and visual amenity of certain areas.

The document noted that the high crime rate was a concern to the community and that the protection of life and property had become a priority in most, if not all neighbourhoods of the City.

Boundary Walls and Fences Explained

A Definition of Boundary Walls and Fences

For the purposes of managing and assessing proposals in terms of their “new” policy, the City defined a boundary wall or fence as “any wall, fence or enclosing structure erected on or next to a property boundary and any other structures (including but not limited to security devices, for example spikes, electric fencing, barbed or razor wire) affixed to or on top of it.”

Specifications for Boundary Walls and Fences

There is now a list of specifications for boundary fences and walls that are:

  • located on street boundaries,
  • located on boundaries of public open space,
  • and lateral boundaries.

These must comply with the following requirements:

  • Solid boundary walls may not be any higher than shall 1.8 m on street boundaries, and no higher than 2,1 m on lateral boundaries.
  • Palisade-type fences may not be higher than 2.1 m on either street or lateral boundaries.
  • Fences may not be higher than 2,1 m on street boundaries.

[Note:  The National Building Regulations state that walls and fences to a maximum height of 1,8 m are regarded as “minor building work” and do not require plans. So whilst the City of Cape Town allows walls and fences to be a maximum of 2,1 m, unless they rule otherwise, plans will be required.]

  • The District Manager has the right to relax these height requirements at his/her discretion.
  • At least 40% of the surface area of any street boundary walls, including gates, if these are provided, must be visually permeable – ie you need to be able to see through close to half of the wall and gate.
  • Boundary walls and fences must be measured from the existing level of the ground that abuts the wall or fence. If the level of the ground on opposite sides of the fence or wall are not equal, the height should be measured from the higher of the two sides. If soil is retained by a boundary wall, the maximum permitted height of the retained soil is 2,1 m. This should be measured from the natural ground level in front of the wall. A balustrade wall not exceeding 1 m in height is permitted above the level of the retained soil.

[Note: Plans are required for retaining walls.]

  • Where two intersecting street boundaries of any property enclose an angle of less than 135 degrees, the maximum permitted boundary wall height above street level within 4, 5 m of the intersection of the boundaries is 1 m.
  • Electrified fencing and other forms of security fencing must also comply with these requirements.

Important Provisions of the NBR
and Building Standards Act

The provisions of Section 4 of the National Building Regulations and Building Standards Act, No 103 of 1977 (ie the legislation), are applicable which means that prior written authority must be obtained from the City when erecting a boundary wall or fence. More specifically, Section 4 of the Act relates to: ”Approval by local authorities of applications in respect of erection of buildings”, and states that people must:

  1. get written approval from the local authority after plans and specifications have been submitted to the local authority
  2. submit all applications in writing on the form supplied by the local authority
  3. supply the name and address of the person applying for permission to build together with the necessary plans, specifications etc. required by the National Building Regulations and Building Standards
  4. be aware that anyone who contravenes the Act will be guilty of an offense and liable (if convicted) to pay a maximum fine of R100 per day for every day spent erecting and building illegally.

The Building Control Officer has indicated that the provisions of Section 13 of Act 103 dealing with work of a minor nature are also applicable.

Note that this is not a reference to the section in the Act that refers to minor building work

Section 13 of the Act relates to “Exemption of buildings from national building regulations and authorization for erection”, and it states that any building control officer may exempt property owners from the need to submit plans or authorize erection of a building in accordance with specific conditions and directions.

Note that the City of Cape Town has seen fit to draw attention to this section in terms of walls and fences (not only buildings as such).

Sources

Boundary Walls and Fences Policy. City of Cape Town, Directorate: Strategy & Planning; Department of Planning & Building Development Management; Development Policy & Processes Branch. January 2009.

Reader’s Digest Family Guide to The Law in South Africa. The Reader’s Digest Association South Africa (Pty) Ltd. Cape Town. 1986.

  258 Responses to “Boundary Walls and Fences”

Comments (258)
  1. Hi

    My neighbour has built his braai place right on the boundary wall, where there is trees, scrubs as well as my bedroom. When he makes fire all the smoke comes in my room, even when closing the windows. I don’t think this is legal. Where can I get more information on this.

    • Karen this becomes a case of “public nuisance”. Also, if it is a substantial structure then he may have required plans. The best advice I can give is to contact the planning department of your local authority and ask them to send a building inspector to investigate. Alternatively you could send a letter (preferably from a lawyer) to the neighbour to say that the smoke is adversely affecting your home and your health and demand that he demolishes the structure.

  2. My home is below road level,our driveway entrance comming into the yard has a sand on the left handside,im raising a wall alongside the bank inside the property,what kind of requirements do i need?Its just over a metre in height only visible to me.looking for some advise please.

  3. Hi
    My boundary wall has lights fitted, one light did not work as the cable is damaged so the builder has just connected a cable to a working light and connected the cable to the non working light and strapped the cable to the wall, all the other cabling is cemented into the wall, is the strapping of the cable to the top of the wall legal

    • Probably not Phil. Apart from which a qualified and registered electrician should be sorting out the problem for you, not a builder. The law is very strict on this one.

  4. Last year I built a triple garage on the boundary line or so I thought it was the boundary line. There was a old wall from probably 30 years ago which divided my property and my neighbors. The previous owner and I agreed I could take this old wall down and erect a new one at my cost in order to build the garage. The garage shares the boundary wall. The plans was approved at the local council to build like this. A new neighbor has now moved in and it turns our where the old wall was and where the new one is, is not the boundary wall. 1 metre into my property actually belongs to the neighbor. I am not sure now what to do? I looked at the plans that was approved and we have built to that specification, however the architect if he had measured the size of the property he would have seen my property is 1 metre bigger. This could have been resolved then before any building took place.

    Looking for any advice.

    Regards
    Brandon

    • Brandon you have a problem, but I really don’t believe it is the architect’s fault. It is not the responsibility of an architect to measure boundary lines – this would be the function of a qualified quantity surveyor. However, a few things come to mind. Firstly, did the new owner have the property surveyed? Or what is this revelation based on? Did you have a written agreement with the previous owner, and do you have proof that there was a boundary wall in that position for several decades? The latter could probably be used to prove that it was reasonable for you to assume that this was the boundary. If I were you I would first establish exactly where the corner pegs of your property are. You will need a surveyor for that, though you might try first working off the original surveyor general’s plan. If you had a written agreement with the previous owner and the plans were approved by council, there may be a legal loophole – but you will need to consult with a lawyer. Otherwise you may need either to demolish the wall or comes to an agreement with the new owner in terms of the land. But if that one metre is in fact your neighbour’s land, you would have to have the two properties resurveyed and the title deeds changed. Let us know what happens.

      • Hi Penny,

        Thank you for your reply. The new owner has not had the property surveyed, it is what his architect is saying, that we have built 1 meter onto the neighbors property. I did a quick measurement of my property and it truly does seem +- 1 meter more. I have to come back to my architect who drew up plans for the entire property with the existing building and of course the new construction. If he truly measured he would have seen a discrepancy between what he measured and what council has on record.

        In terms of proof of the wall I have photos showing the old wall and where it was. The size of the trees will establish the age of the wall. The trees have subsequently been removed. The agreement I had with the previous owner unfortunately was a verbal one. I offered to remove the old wall at my cost and erect a new one also at my cost. To remove the wall would also mean breaking down the garage, which of course I don’t want to go there. The garage was in excess of R180 000 excluding the carport and paving.

        I am in the process of seeking legal advice to see what can be done. If I need to purchase this land, then maybe that is the way to go, providing he is willing to sell. The neighbor says he wants to settle this amicably, so I can only hope.

        Thank you once again for replying. This I must say is very stressful.

        • You absolutely cannot just measure the property. It must be surveyed by a professional to ensure that the pegs are in the right place. You are not obliged to do anything until this has been done. So this is something that your neighbour should do. Maybe the boundary line was at an angle, or maybe another boundary wall or fence is in the wrong place. Those pegs are crucial.
          The starting point is probably to access the title deeds. You can get the original surveyor general’s drawing from Pretoria if you don’t already have them. The other factor is that you had plans passed by the council, and they would normally cross refer to a site plan that is based on the original surveyor’s drawing. In fact they won’t accept plans without a site plan of the property. It really was not up to your architect to measure your property. He should have worked from the site plan (i.e. the surveyed plot) and then measured from the boundary – which was his/her starting point. And I can’t imagine how else he would have worked. Have you asked?
          As I said before – or kind of intimated – if you buy the land, there will be all sorts of registrations etc and changes to the title deeds that need to be done. It might be the only solution … but please check thoroughly first. Good luck.

  5. Hi

    We have an existing vibracrete wall (4 panels high) and would like to either increase this to 6 levels or put up a new wooden fence. We live on a fairly busy road and would like the added security of a higher wall as well as the noise reduction a higher wall may bring.

    Having read the building regulations it says that 40% must be visually permeable, would this then mean that we would not be able to increase the existing wall?
    Also, do we need to obtain approval before commencing any work?

    Thanks for your advice.

    • Thomas, the best is for you to contact the local authority in your area. They have different policies. The National Building Regulations as such do not specify what is and is not allowed in terms of boundary walls and fences. They will also tell you whether they need plans. You will, in any case. need approval.

  6. Hi,

    i recently purchased a house as a rental income. The neighbor did, whilst i was renovating, update me to the fact that the previous owner and him had had a fallout over the erection of a boundary wall and sharing costs incurred. He then decided to build it on his property at his own expense. But there was no problem he just wanted me to know…

    When the new tenants started moving in on Wednesday they packed some goods against the vibracrete fence. The neighbor was quick to read them the riot act and state that they may not lean anything against the wall and the water from the sprinklers may also not touch the wall.

    What is the law on this?

    Thank you for your time.

    • Grant if the wall is on their side of the boundary – and they erected it – then the wall belongs to them. So if there is damage to the wall your tenant would be liable. However I don’t think there is any legislation that states specifically that a neighbour may not touch or wet the wall! A couple of thoughts: Depending exactly where the wall has been built, there could be a small strip of land on your side of the wall that MIGHT belong to the neighbour (though chances are they actually built ON the boundary). You would need to find surveyors’ pegs or have the land resurveyed to be sure. My point being that if there is even a few cm of their land on your side of the wall then they technically would have a right to demand that nothing touches the wall on your side. By the same token they could not then demand that you maintain that side of the wall and you could demand that they paint it etc. Not one of the fights you want to get into though. At the end of the day I think that it all comes down to what is reasonable. Packing things up against a vibracrete wall could destabilize it and potentially damage it. So I would think it would be deemed reasonable to ask them not to lean things up against the wall. We’ve had several comments from visitors to this site where this type of wall has collapsed because bricks or soil was banked up on the other side. As far as sprinklers are concerned, my personal feeling is that this is totally unreasonable. However, as I said at the outset, if the tenants damage the wall, or do something that leads to damage, they (or you as the owner) could be held liable.

  7. Hi

    Need some advice desperately.

    We moved into a house 1 year ago which was built some 24 to 26 years ago

    The boundary wall (double wall) on our side is a single brick wall of 15 running meters, 3 meters high, and on our neigbour’s side of the wall is rock and plaster up to just above ground level on his side.

    The natural slope of the ground must have been disturbed when our property was developed at the time as the wall from ground level to the neighbours ground level is 1,2 m

    The neighbour recently started cutting down a tree on his side which was growing close to the the boundary wall . Subsequently the wall started cracking horisontally and is bulging where the tree stump is still in the ground.
    Our insurance company declined our claim and said the wall was not errected according to building regulations. The neigbour’s insurance subsequently rejected his claim as well. Should the wall collapse it pose a serious risk should the wall colapse as it endangers my property

    Question: (The neigbour said he has no money to re build the wall ) Who is responsible to rebuild the wall and possible future damages

    • Elsa, that’s a tough one, apart from which I am a little confused as to which wall might collapse. I also can’t visualize the ground level in relation to the two properties. Not having seen the walls it’s also impossible to gauge whether the insurance companies are in fact correct when they say they have not been built in accordance with the building regulations.
      However, if your neighbour’s tree has damaged your wall, it is his responsibility to rectify the situation. If it has caused damage to his wall and the wall now poses a threat to your property, it is also his responsibility to rectify the situation – because if he doesn’t, and his wall collapses, then he’ll be liable for the damage.

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