Boundary Walls and Fences
Strategic Planning of Boundary Walls and Fences
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 foundations which 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:
- get written approval from the local authority after plans and specifications have been submitted to the local authority
- submit all applications in writing on the form supplied by the local authority
- 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
- 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.
Hi,
A wall between ourselves and our neighbours has been threatening to fall over for a while. It is built in line with their fixed dwelling (garage attached to the house).
Initially we had attempted to negotiate shared cost to repair the wall, but they refused.
I then called in my insurance company to assess in case I could submit a claim, but besides saying that there could be no claim they also said that because the wall is attached to their garage, which appears to be built on the property line, it is in fact their wall and they should be covering the cost of repair.
Does this sound correct?
PS: the wall has since collapsed, which is causing problems for the sale of the property!
Thanks in advance.
My neighbor erected a Wendy house against the boundary wall. The problem is, he recently ‘renovated’ this Wendy and as part of this replaced the roof. The roof is now hanging over the boundary wall interfering with my electrical fence, and is obviously a security concern on my part.
What is the regulation on this? How close is he allowed to erect any such structure to this boundary wall? Can I, legally, ask him to move this structure further away from the wall?
Good Evening.
Please can you assist. We were the first to purchase and have our house built in a new development.
We had a full brick wall built in the front of our property. Our neighbour has a pan handle property which runs partially in front off ours. Please let me know if he is allowed to have electric gates hanging off my way that I paid for?
I eagerly await your response, as I arrived home tonight to find that an electric box has been cut into the wall.
Hi Ruby, I have just replied to your query about your garage, well in the same way that you had to get consent from your neighbour for your garage they must do the same for the wall and a 2.3m wall must have plans approved by council.
Hi Ruby, there is normally a time limit to when the renovations should have been completed but in your case if you did get neighbours permission, you put up “temporary” structure and now you build the garage as it is on the plans then you should be fine. If you are concerned phone your local building inspector and ask his advice.
Hi Dawid, you are absolutely right. As each municipality has it’s own set of bye-laws we do advise everyone to check with their local planning department if they must submit plans or if a letter is sufficient. It would seem from many comments that local planners will try to cover themselves and ask for plans when this is not really necessary.
I wonder if you could assist me with a query, we have purchased an off plan house which forms part of a duet. On viewing all other units built by this developer there was a full boundary perimeter wall.
on viewing our property the other day we noticed that the developer intends to use part of our structure or house to join the wall on either end, in other words our house forms part of the perimeter. We were not informed of this until now.
Is this allowed? Wouldn’t we run the risk if the neighbour waters his lawn whereby our house wall gets moisture etc into it?
Many many thanks for the advise!
Regards
My neighbour took down our precast without our permission, and intends to build a wall in its place. She did not inform us that she would be doing this, and intended to give away our precast away before I confronted her. She will now return the precast, however the wall will only be built in the next two days, and there is worry for security now. Which laws regulate the removal of a neighbours walls without permission?
Hi. The original renovation plans for my home indicated a garage would be erected at the boundary between my neighbor and I. I obtained permission from my neighbor for this when the plans were submitted. However, due to financial constraints, I did not have the garage build at the time and instead put up a carport – I ensured that the steel structure was well away from the boundary. Should I have had the plans changed and resubmitted, or would the orignal plan that indicated a garage of the same length and height suffice?
Hi. My neighbor has put up a 2,3m wall between our properties. They have not obtained any permission from me for this. Is this acceptable?
Hi,
Is there any safety regulations with regards to the installation and manufacturing of electric motor sliding gates?
We have heard of sliding gates slipping of the rail and falling on people and even killing children.
A response to my email will be appreciated.
Thanks.
I live in Bryanston JHB and wish to erect an 8ft boundary wall. Do I need permission/ plans for that ? Also part of the wall will be over a municipal servitude with a stormwater pipe underneath. Where should I get the clearance for that?
My neighbours erected a Vibracrete wall infront of their hous, which is 1.8m in height. It is plain vibracrete. According to my knowledge only pebbled vibracrete is allowed when the wall is facing the road. I would also like to know about the 40% that is not allowed to be retained. If the gates is 40% of the wall, is that acceptable.
Hello there,
I would just like to clarify something. You state that:
[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….
Part A of SANS 10400 indeed describes a boundary wall of 1,8m as being minor building works, BUT only minor building works as contemplated under A2 (g) (iii) of SANS 10400 are exemplified from requiring plans to be submitted.
I bring this up as we have had numerous clients requiring plans because they had built their boundary walls without acquiring the necessary plan approval as they were misinformed due to the misconception of minor building works and the requirement for plan approval.
Home owners need to confirm with their local authority whether they are required to submit plans for boundary walls.
We are based on the South Coast of South Africa and the Hibiscus Coast Municipality require plans to be submitted for plan approval before boundary walls are to be erected.
Thank you for your website, it is a wonderful source of information.
Niren I am not aware of a regulation that specifies this. There are regulations though that relate to drainage, and it is the property owner’s responsibility to channel rain water into proper channels.
Good move.
Thank you, for your response, We have not yet signed as we are awaiting the amended building plans , as well as the letter from the builder and neighbour that we have arranged to be proof read and amended by a lawyer.
No there is no specific time frame Vaughan, though in terms of common law it must be “reasonable”. It is not reasonable for them to expect you to sign immediately – without having time to make sure you really do approve. I trust that you didn’t sign the documentation, because if you do you will have no recourse. If he has not built according to plan you should notify the local authority immediately as it could negatively impact on the resale value of your home.
And no you are not been unreasonable, but you are also not going to have much protection with a mere letter – though it is better than nothing.
Hello there,
Need advice on the following:
My neighbour gave me documentation to sign, requesting us to approve bulding plans ,
1) is there a certain time frame required for us to sign and give it back as they want us to sign immediately.
2) we found that the plans were not a true reflection of what was existing on there grounds.
He prevoiusly told us he was only going to lift his roof by 6 layers of brick, when he was finished it was a double storey with a thatch roof on, closing most of our sunlight to the back of our property.(on the borderline to our property)
3) with the previous experience with our neighbour , we have learnt that what he says and does are to different things, so our request to him was to put it in wrighting that he would never build another building on our side of his property single stracture or doulble and if he did the would be a penilty.
Are we being unreasonable?
Christian unfortunately one is often forced to take legal advice in a matter like this. Good luck.
Cheyne for you to be forced to allow them to use your garden as a walking route, there would need to be a registered (and therefore legal) servitude. If there isn’t one, then you can deny them access. I presume they have another way they can walk?
Thanks for the reply I have found out that my neighbour did not get plans approved and the counsel has issued a notice the problem we are having now is that the neighbour keeps invading our privacy by constantly looking into our property, I am thinking of seeking legal advice to help me while we wait for the counsel, thanks again for the information
Liz I would say no you aren’t, unless your neighbour arranged with you beforehand that you would complete your side of the wall. Fact is that it is his wall and as such he should complete it. The fact that he has plastered his side and not yours is good grounds for complaint – and while you were not around. It is always best for neighbors to discuss this type of building project to avoid problems like this one. I would approach your neighbour and suggest he completes the job (on your side). If he refuses, put him to terms (i.e. give him a certain length of time and state that you will take legal action if he doesn’t comply). Then you will either have to go to a lawyer, or the small claims court. The latter is quite a good option, unpleasant that it is for all involved. Cheap(ish) and they are generally very fair.
Christian this is a problem that many people face. Generally you do not need permission from a neighbour to build a second storey, and it is up to the local authority to make sure that neighbour’s privacy is not invaded. Here is a link to an article about one law that has been promulgated to try and protect people in this situation. I hope it helps.
Lindsey, there is an article HERE that discusses the City of Cape Town’s walls and fences policies. I’m not sure that they are bylaws though. I suggest you contact the City and ask who you can talk to about the situation.