Dividing Fences

In deciding what a “sufficient diving fence” is, 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 sis 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 ands the like relating to fences in the area

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 are 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.

The Dividing Fence Act provides in section 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 section 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 issues of Crown liability for dividing fences have received different treatment in different states. South Australian Capital Territory has legislated to provide limited liability attaching to the Crown but the New South Wales Parliament rejected that approach when it implemented the Act – see section 25 of the Act.

If there is a dispute about the standard of fencing required, one neighbour must give the other a Fencing Notice

If the adjoining neighbours are not able to come to an agreement, one neighbour may issue a Notice pursuant to section 11 of the Act.  That Notice must contain the following information:

• A requirement that an adjoining owner contribute to the fencing works;
• The estimated costs of the works and how those costs are to be shared between the adjoining neighbours;
• A precise description of the land on which the works are to be carried out and specifically, whether the works are to be carried out on the boundary line or on some other line preferably with reference to a plan or drawing; and
• The type of works to be carried out, such as the length, height and type of fence to be installed.
• We suggest the Notice annex a quote (or two) with the full description and costs.

Pursuant to section 21 of the Act, a Section 11 Notice is to be served on an adjoining owner by delivering it personally or by posting it to that owner’s usual or last known residential/business address.

If agreement still cannot be reached, the neighbour can apply to a Local Court for an order for the proposed work to proceed.

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.