The Dividing Fences Act 1991 sets out the minimal standards for sharing the cost of dividing fences between adjoining land owners, as well as circumstances where an owner wants to erect a dividing fence or wants work done on an existing dividing fence. The Act also sets out the procedure for resolving disputes involving the cost, type and position of a fence.
The Act states that:
- An adjoining owner is liable for up to the whole cost of the fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or of a person who has entered the land concerned with the express or implied consent of the owner.
- Council has no jurisdiction to settle disputes between neighbours in relation to dividing fence disputes and it will not adjudicate disputes between neighbours.
What is a dividing fence?
A dividing fence is a fence that separates the land of adjoining owners, and can be a structure, ditch, embankment, hedge or similar vegetative barrier, a gate or a watercourse. It does not include a retaining wall (unless the retaining wall is a foundation or support necessary for the support and maintenance of the dividing fence), or the wall of a building.
When is Council approval needed for a dividing fence?
Approval from Council for erecting a dividing fence is only required when the proposed fence fails to meet the criteria specified under State Environmental Planning Policy (Exempt and Complying Development) 2008. In general, most dividing fences do not require Council approval.
Where Council's approval is required, the rules for fences are defined in Council's Development Control Plans.
Who is responsible for dividing fences?
Each owner is responsible in equal proportion for contributing to the provision of a satisfactory dividing fence. However, this is not the case where a dividing fence forms part of swimming pool fencing or the adjoining land is owned by Council or another government authority.
As a general rule, each owner contributes in equal proportion to the cost of providing a boundary fence of a satisfactory standard. Should one owner desire a fence exceeding the satisfactory standard, then that owner is liable to pay all the additional cost associated with construction of a higher standard of fence over and above half the cost of a fence of satisfactory standard.
For example, an existing timber paling fence needs to be replaced. Neighbour A wants a new paling fence and Neighbour B wants to upgrade to a brick fence. Subject to agreement being reached between the neighbours to construct a brick fence, Neighbour A is only liable to pay 50% of the cost of a paling fence with the remainder of the costs associated with the brick fence being payable by Neighbour B.
Contact details of a property owner
Council can provide you with contact details of a neighbouring property owner, if the purpose is to serve written notice in accordance with Section 11 of the Act requiring an adjoining property owner contribute to the carrying out of fencing work along a common boundary line.
A request to be provided with the name and postal address of a property owner for a legislative purpose will only be considered with the submission of a Statutory Declaration, attesting to the reason for your request, along with a certified copy of your photo identification.
What if my adjoining landowner is Council or another government authority?
Under Section 25 of the Act, Council is exempt from contributing to the cost of dividing fences being constructed on the common boundaries where the land held by Council is for the purposes of a public road, public park or public reserve including most drainage reserves by reason of Section 49 and Section 50 of the Local Government Act 1993 and most public garden and recreation spaces.
Disputes involving dividing fences
If you cannot come to an agreement with your neighbour, you can apply for a Fencing Order. A Fencing Order is a court or tribunal order about what fencing work should be done and how the costs of that fencing work should be shared.
You can apply to the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (NCAT) or the Local Court of NSW (the Local Court) for a Fencing Order. This section has information about how to apply for a Fencing Order, including:
- How to fill out an application to NCAT or the Local Court.
- Preparing for a hearing.
- Presenting your case at a hearing.
Who gives advice about dividing fence disputes?
The main sources of advice about dividing fence laws and disputes are:
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