Dividing Fences Act

The Dividing Fences Act 1991 regulates neighbours’ responsibilities towards dividing fences and is designed to settle the contentious aspects of sharing a fence. Nothing in the Act prevents neighbours coming to their own agreement about a fence, for example that one owner will pay the whole cost, or coming to an agreement that exceeds the requirements set out in the Act.

The Dividing Fences Act 1991 applies where a landowner wants an adjoining owner to contribute to the costs of constructing, replacing, repairing or maintaining a dividing fence. It covers issues such as cost-sharing, location and the standard of dividing fences and sets out procedures for carrying out the work and resolving disputes.

It does not apply to public authorities such as those with control over Crown land, public parks, reserves and roads. Although not liable under the Act to contribute to fencing costs, they are often willing to make some contribution.

The general principle in the Act for liability for costs is that adjoining owners are to contribute equally to the fencing work for a dividing fence of a sufficient standard. If an owner wishes to have a fence of a higher standard, that owner is liable for the extra cost above the sufficient standard. If an owner wants to carry out additional trimming, lopping or removal of vegetation than is needed for the purpose of the fencing work, then that owner is liable for the extra work. Where the fencing work includes special requirements for enclosing a swimming pool, in accordance with the Swimming Pools Act 1992, these extra expenses must be met by the owner of the property that contains the pool (Swimming Pools Act 1992, section 33).

Where the dividing fence needs rebuilding or repairing because of negligent or deliberate damage caused by an adjoining owner (or by a person entering the land with their permission) that owner is liable for the entire cost of restoring it to a reasonable standard.

Under the Act, a dividing fence is a fence separating the land of adjoining owners whether or not it is on the common boundary. It can be a structure, ditch, embankment, hedge or similar vegetative barrier and includes:

• any gate, cattlegrid or apparatus necessary for the operation of the fence
• any natural or artificial watercourse that separates the land of the adjoining owners
• any foundation or support necessary for the support and maintenance of the fence.

It does not include a wall that is part of a house, garage or other building and it only includes a retaining wall where the retaining wall is a foundation or support necessary to the support and maintenance of the fence (Dividing Fences Act 1991, section 3).

As well as the construction, replacement, repair and maintenance, the fencing work involved also includes:

• design
• surveying
• preparation of the land along or on either side of the common boundary (for example trimming, lopping or removing vegetation)
• planting, replanting or maintaining a hedge or similar vegetative barrier
• cleaning, deepening, enlarging or altering any ditch, embankment or water course that serves as a dividing fence.

The procedure set out in the Act to require a neighbour to contribute, is to issue the neighbour with a Fencing Notice containing the details of the proposed work. Where the neighbour is a tenant, the Fencing Notice would usually be issued to the owner (sections 3 and 11). It can only be issued to a tenant where the unexpired term of the tenancy, at the time of issuing the fencing notice, is five years or more. There is no standard format for a valid Fencing Notice but section 11 of the Act states that it must specify:

• the boundary line or, if impracticable, the line of the proposed fence
• the type of fencing work proposed
• the estimated cost, and
• if it is not to be equally shared, then the share proposed.

If the parties cannot agree on the fencing work proposed in the notice, they can attend mediation at a Community Justice Centre or, after a month has elapsed, either party can apply to the Local Court or the NSW Civil and Administrative Tribunal (NCAT) for an order deciding the matter (Dividing Fences Act 1991, sections 12-13). Where the land is the subject of a lease under the Crown Land Management Act 2016  the application can only be made to NCAT (subsection 13(1A)).

Where the fence has been damaged or destroyed and the circumstances require urgent fencing work, the owner can carry out the urgent work without first issuing a fencing notice, if the circumstances make it impracticable. The adjoining owner is still liable for half the cost but this can be reviewed by the Tribunal or Local Court at a later stage.

The Local Court and NCAT have jurisdiction under the Act to hear and determine disputes. It can make orders on matters such as:

• the boundary or line the fence will be built on
• the contribution of each party
• the fencing work to be carried out, including the type of fence
• where the neighbours are sharing the work, how the work is to be allocated
• the time frame for the work
• compensation for the loss of occupation of any land
• whether a dividing fence is needed.

Under section 4 of the Act, in determining the sufficient standard for the dividing fence, the Local Court or NCAT must consider all the circumstances of the case, including:

• any existing dividing fence
• the purposes the adjoining lands are used for or intended to be used
• the privacy and other concerns of the adjoining landowners
• the kind of fence that is usual in that locality
• any local government policy or code that applies in the area
• any relevant environmental planning instrument relating to the land or locality
• where the land is leased under the  Crown Land Management Act 2016, the tribunal must also consider any order in place under that Act.

The court or tribunal may also award costs of the case against either party, or order that they be shared. Any order made that involves an amount of money can, if not paid, be pursued as a debt in an appropriate court.

The Dividing Fences Act 1991 is designed for requiring neighbours to contribute to the costs of a dividing fence. It will not be available for example, where a landowner does not seek a contribution from their neighbour and so does not issue a fencing notice in accordance with the Act.

If you do not like the choice of dividing fence that your neighbour proposes but you are not asked to contribute to its cost, you could try negotiating with the neighbour or try mediation through a Community Justice Centre. If you wish the style of fence to be of your choice, you may wish to issue a fencing notice yourself. Under the Act you will be expected to share the costs involved.

Reference:

https://legalanswers.sl.nsw.gov.au/neighbours-and-law/dividing-fences

Fencing Regulations Guide New South Wales