Property Law - Dividing Fences

Authors: David Quinn

Background

The Dividing Fences Act, 1991 (NSW) provides the legislative framework for dealing with boundary fences as between adjoining owners/neighbours. In 1988, the New South Wales Law Reform Commission published a comprehensive report on dividing fences that led to the enactment of the Dividing Fences Act, 1991. One of the key recommendations of that report was that mediation agreements made between adjoining owners about dividing fences should be binding in court.

Building and repairing a dividing fence 

The Act provides that adjoining owners of property are required to share equally the costs of a “sufficient dividing fence”. What is a “sufficient dividing fence” will depend upon all the circumstances of the case.

If there is a dispute about the standard of fencing required, one neighbour must give the other a Fencing Notice. If agreement still cannot be reached, the neighbour can apply to a Local Court for an order for the proposed work to proceed.

What is a “sufficient dividing fence”?

In deciding what is a “sufficient dividing fence”, a court will take into account the following: -

• the standard of the existing fence
• the purpose of the fence
• the way the land on either side of the fence is used
• privacy or other concerns of each neighbour
• the kind of dividing fence that is usual in the area
• any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated
• any local Council requirements, covenants and the like relating to fences in the area

Who pays?

While the general rule provides for neighbours to equally share the costs, there are exceptions which include: -

• if one neighbour wants a fence of a standard greater than a “sufficient dividing fence”, for example, if you want a fence that contained more expensive materials such as brick, besser blocks and the like when the predominant fence in the local area was a paling fence, then you may have to pay for the additional costs involved;
• if one neighbour deliberately or negligently damaged or destroyed a fence, he would be responsible for the full costs of the fencing.

Contributions when urgent fencing work is required 

The Act provides, via s.9, that when a fence has been damaged or destroyed and in the circumstances requires urgent fencing work then restorative work may be undertaken without the necessity of the service of notices pursuant to s.11 of the Act.

Any liability for contribution may be reviewed by a court on the application by an owner within one month of the completion of the restoration work.

The liability of the Crown 

Fencing agreements should preferably be reduced to writing. A neighbour who goes ahead and constructs a fence, without first consulting and coming to an agreement with the other neighbour first, might not be able to recover half of the costs in a court.