A few times each year we get contacted by clients who are at war with their neighbours about dividing fences.
These kinds of disputes can be a great sense of friction for people, and in the worst cases this can lead to formal legal disputes – so it is important to have a general understanding of your rights and obligations with respect to dividing fences.
In NSW a piece of legislation called The Dividing Fences Act 1991 regulates dividing fences between neighbouring properties. Pursuant to the Act, a fence means a structure, ditch or embankment, hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners.
This can include:
• a gate, cattle grid or apparatus necessary for the operation of the fence;
• any natural or artificial watercourse which separates the land of adjoining owners;
• any foundation or support necessary for the support and maintenance of the fence.
Under the Act, this does not necessarily include a retaining wall or a wall which is part of a house, garage or other building.
Most fences that separate adjoining land owners are traditional wood or Colorbond fences but this is not always the case, particularly in the case of rural land.
Generally speaking, the law says that adjoining land owners are equally responsible for the cost of a sufficient dividing fence. One of the main sources of conflict between neighbours who are at war about fencing is what constitutes a sufficient dividing fence.
The definition of “sufficient” depends on a range of factors including:
• the standard of any existing fence;
• the condition of any existing fence;
• the purpose for which the land is used (for example, is the fence used to divide land only, or to keep cattle in or out);
• privacy and related concerns;
• the style and condition of other dividing fences in the area;
• Council and other legal requirements.
If you are seeking to complete some fencing work and want to recover some of the costs from your neighbour there are certain notice requirements you must comply with under the Act. If you do not comply with these requirements you run the risk that your neighbour will not have to make any contribution to the works.
The jurisdiction for hearing fencing disputes is usually the NSW Civil & Administrative Tribunal (NCAT) or the Local Court.
Daniel McKinnon
Since graduating with two degrees in Law and Commerce from the University of Wollongong, Daniel’s spent over ten years solving a wide range of legal problems for the people of Western Sydney.