The Dividing Fences Act, 1991 (NSW) provides the legislative framework for dealing with boundary fences as between adjoining owners/neighbours.
The Act provides that adjoining owners of property are required to share equally the costs of a “sufficient dividing fence”. What constitutes a “sufficient dividing fence” will depend on the circumstances of the individual case.
When considering what constitutes a sufficient dividing fence the 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 for the area;
- Any relevant environmental planning instrument relating to the adjoining lands or the locality in which they are situated;
- Any local Council requirements, covenants and the like relating to fences in the area.
Who pays for the dividing fence?
While the general rule is that neighbours will share equally in the costs of a dividing fence, 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 contains more expensive materials such as brick or besser blocks when the predominant fencing in your local area are paling fences, then you would be responsible for the additional cost involved;
- If one neighbour deliberately or negligently damaged or destroyed the existing fence then he would be responsible for the full costs of replacing the fencing.
Contributions when urgent fencing is required:-
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:-
- Notice that an adjoining owner contribute to the fencing work;
- The estimated costs of the work 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 surveyor’s drawing; and
- The type of works to be carried out, such as the length, height and type of fencing to be installed.
This 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 then a neighbour may apply to the Local Court for an Order for the proposed work to proceed.
The Act provides that when a fence has been damaged or destroyed and in the circumstances requires urgent 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 then be reviewed by a Court on the application of either owner within one month of the completion of the restoration work.
Fencing agreements should be in writing. A neighbour who constructs a fence without first consulting and coming to an agreement with the adjoining neighbour may not be able to recover half of the costs in Court.
The requirement for a written agreement will be satisfied if your neighbour simply signs the agreed quote and endorses on the quote that they agree to the proposed fencing work.
If you have an issue with a dividing fence contact Brazel Moore Lawyers on (02) 4324 7699 to speak to an experienced Solicitor today.