Fence Disputes (NSW)
Dividing fences can be a source of disagreements between neighbours. A dispute can arise when the owners of adjoining properties disagree about the fence construction, maintenance or position. In New South Wales, such disputes are governed by the Dividing Fences Act 1991.
Under the Act, a fence is defined as “a structure, ditch or embankment, or a 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”. The definition includes:
- any gate, cattle grid or fence mechanism;
- any natural or artificial watercourse which separates the properties;
- any fence support or foundation.
It does not include a retaining wall or a wall that is part of a house, garage or other building.
Fencing work is defined as the design, construction, replacement, repair or maintenance of all or part of a dividing fence, and the surveying or preparing land for the work. It includes the planting, replanting or maintenance of a hedge or similar vegetative barrier, and the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence.
An adjoining owner is liable to contribute equally to the cost of a building or replacing a standard dividing fence. However, if an adjoining owner or their guest damages or destroys the fence through negligence or a deliberate act, that owner is liable for the whole cost. If a fence has been damaged or destroyed and needs to be restored urgently, and it is impracticable to serve a repair notice, an adjoining owner can carry out the urgent work needed and the other adjoining owner is liable for half the cost.
The Act does not apply to public authorities such as those which control Crown land, public parks and reserves. Some are often willing to make a contribution to fencing between this land and private property, however.
An adjoining owner should issue a notice to the other adjoining owner that fencing work needs to be done and that they should contribute to the cost. The notice must state the boundary line where the work will be done, the type of work and the cost. If work is done before the notice is served or after the notice is served but before agreement, the other adjoining owner is not liable to contribute to the cost.
If the adjoining owners reach agreement on the fencing work, the terms should be put in writing. The agreement should cover all details, including fence height, material, colour, cost and position; as well as any arrangements for the removal of any existing fence and any extra work that might need to be done and the cost.
When agreement is not reached
Adjoining owners can attend a Community Justice Centre to help reach an agreement. If agreement has not been reached within 1 month of the notice being issues, either owner can apply to the local court or the NSW Civil and Administrative Tribunal (NCAT) for an order about the work.
In determining an order, NCAT must consider all the circumstances of the case, including:
- any existing dividing fence;
- the purposes for which the adjoining lands are used or intended to be used;
- the privacy or other concerns of the land owners;
- the kind of dividing fence usual in the locality;
- any local council fence policy;
- any applicable environmental planning instrument.
Its orders can include determinations about:
- the boundary where the work is to be done;
- the work to be done, including the type of fence;
- the contributions from each of the adjoining owners;
- the portion of the fence to be built or repaired by either owner;
- the time frame for the work to be done;
- any compensation to eb paid for loss of land;
- whether a fence is needed.
If an adjoining owner fails to comply with an order made by a local court or NCAT, the other adjoining owner can do the work agreed upon and recover the agreed amount or half the cost of the work from the defaulting owner.
Under the Trees (Disputes Between Neighbours) Act 2006, the Land and Environment Court can hear and determine a fence dispute involves a tree. A dispute can be transferred to this court by application or of the court’s own motion, if a tree has damaged or is damaging a dividing fence; or if a tree is part of a dividing fence and has damaged, is damaging, or is likely to damage property or injure a person.
Retaining walls are not covered by the Dividing Fences Act 1991 unless the retaining wall is needed to support and maintain the dividing fence. A retaining wall often provides structural support for a higher property and prevents movement of land between the higher and lower properties. An independent report from a structural engineer should be sought in a dispute involving a retaining wall.
For advice or representation in any legal matter, please contact Armstrong Legal.