Information on dividing fences including responsibilities for each party.
What is a Dividing Fence?
A Dividing Fence is a fence that separates the lands of adjoining owners. The Fence may be a structure of any material, a ditch, an embankment or a vegetative barrier (e.g a hedge) It does not include a wall of a building. A retaining wall is not a dividing fence, except if it is a foundation or a support necessary for the support or maintenance of the fence.
Frequently Asked Questions
Most dividing fences do not need Council approval, however, before erecting a fence, owners should visit the ePlanning Website https://www.planningportal.nsw.gov.au/development-assessment/exempt-development/fences to ensure the fence you wish to build does not need any approval.
An owner wanting an adjoining owner to contribute to the cost of a dividing fence must first serve a Fencing Notice on that adjoining owner (personally or by registered post). Unless urgent fencing work is required, no fencing work for which a land owner seeks a contribution from an adjoining owner should be done until agreement is reached or an order is made by the Local Lands Board or Local Court. Owners must share in the cost once agreement is reached.
A Community Justice Centre may be able to help if adjoining owners have difficulty reaching agreement. If agreement is not reached within one month of the Notice being served, either owner may apply to a Local Court of Local Land Board to have the matter decided.
Further Information can be found on the LawAccess NSW website.
When a Fencing Notice Need Not be Served
If Urgent fencing work is needed on a dividing fence which has been destroyed or damaged, adjoining owners must share equally the cost of that urgent work even through a Fencing Notice has not been served. Reasons for urgent fencing work include safety, security or to prevent stock loss. A Local Court or Local Land Board can review any dispute arising in these circumstances. An owner can apply to a Local Court or Local Land Board for an Order about costs if a Fencing Notice is unable to be served because the whereabouts of the adjoining owner are unknown.
Under the Dividing Fences Act 1991, adjoining owners must share the cost of the fence, except that:
- an owner must pay the additional cost if they want a fence of a higher standard that is required for a sufficient dividing fence.
- an owner will have to pay the full cost if the existing fence is damaged, wither deliberately or negligently, by the owner or by someone else with the owner’s permission. If the fence is damaged by a tenant, the owner must pay for the work even if they plan to claim the cost from the tenant.
- public authorities with control over Crown Lands, parks, reserves, roads etc. do not have to contribute to fencing costs. However people living next to such properties may be able to negotiate with the authority for a contribution.
A sufficient dividing fence is a fence that adequately separates the properties. For example, a paling fence in a residential area, or a wire and steel star post fence in a rural area. The Dividing Fences Act 1991 lists the factors a court would take into account if there is a dispute about the standard of fencing required., such as the standard of any existing fence, the use of the lands either side, privacy or other concerns of the owners, the usual kind of fence in the locality and any relevant local council requirements.
If one owner wants a fence of a higher standard than a sufficient dividing fence, the owner wanting the higher standard is liable to pay the difference in the cost between that fence and a sufficient dividing fence.
If an existing dividing fence is damaged or destroyed by one owner or someone on the owner’s land, the owner is liable to pay the whole cost of restoring the dividing fence.
Any money which an owner is required to pay under the Dividing Fences Act may be recovered as a debt in a court.
An owner who is carrying out fencing work under this Act is able to enter the adjoining land for that purpose at any reasonable time. This also applies to the owner’s employees or agents.
Some authorities do not have any rights or liabilities under the Act. They are:
- The Crown;
- Local Councils or other trustees in respect of public reserves;
- Local Council’s in respect of public roads.
Nevertheless, any authority may wish to contribute to the cost of a dividing fence.
The Dividing Fences Act 1991 addresses how the cost of a dividing fence or wants work done on an existing dividing fence. The Act sets out the minimum requirements owners may agree to agreements exceeding these requirements. The Act also sets out the procedure for resolving disputes involving the cost, type and position of a fence.
For dividing fence matters beside obtaining adjoining owners information please visit the Communities & Justice website.
For further information, contact a solicitor or the nearest Local Court, Local Land Board or Community Justice Centre or contact Council on (02) 4677 1100 or email Council.