Dividing Fences Law

The following extract has been provided by the Department of Local Government
 
DIVIDING FENCES ACT
 
The Dividing Fences Act 1991 commenced on 1 February 1992. The Act is about how the cost of a dividing fence is shared between adjoining LAND OWNERS where an owner wants to erect a dividing fence or wants work done on an existing dividing fence. It sets out only the minimum requirements, and owners may always agree to arrangements above those requirements.

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. hedge. It does not include a retaining wall or a wall of a building. The COST of a dividing fence includes the cost of all related FENCING WORK, such as preparation of the land, and the design, construction, replacement, repair and maintenance of the fence.

SHARING THE COST OF A DIVIDING FENCE  

Adjoining land owners are liable to share equally the cost of fencing work that will result in a sufficient dividing fence.  A SUFFICIENT DIVIDING FENCE is a fence sufficient to separate the properties, for example a paling fence in a residential area, or a wire and steel star post fence in a rural area. If a court or land board needs to decide what is a sufficient dividing fence between adjoining owners, it will consider matters such as any existing dividing fence, the uses of the lands, privacy or other concerns of the owners, the usual kind of fence in the locality, or any relevant local council policy.

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, that owner is liable to pay up to the whole cost of restoring the dividing fence.
 
SERVING A FENCING NOTICE  

An owner wanting an adjoining owner to share in the cost of a dividing fence must first serve a FENCING NOTICE on that adjoining owner (personally or by post) before any fencing work is commenced. There is a sample Fencing Notice on the following page. 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 or Local Land Board to have the matter decided.  

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 though 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.  

CARRYING OUT FENCING WORK  

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.  

RECOVERING MONEY  

Any money which an owner is required to pay under the Dividing Fences Act may be recovered as a debt in a court.  

SEEKING FURTHER INFORMATION  

The Dividing Fences Act is available for purchase from the NSW Government.  Information Service or can be viewed at www.austlii.edu.au. For further information, contact a solicitor or the nearest Local Court, Local Land Board or Community Justice Centre.  

AUTHORITIES NOT COVERED BY THE ACT  

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 councils in respect of public roads. 

Nevertheless, an authority may wish to contribute to the cost of a dividing fence.

DIVIDING FENCES ACT 1951    

This earlier Act applies to a dividing fence matter where a notice was served under that Act, an order was made under section 11 or work was completed under section 14(2)(b) of that Act.

LOCAL COUNCIL APPROVAL
 
Before erecting a dividing fence an owner must contact the local council to determine whether development consent is first required.

LEGAL ADVICE

The above is not legal advice and is only a brief summary of a complex area of Law.  You must seek legal advice which is appropriate to your particular and specific circumstances.

Contact us to arrange an appointment with one of our experienced Lawyers.

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Below is a suggested Form for the Fencing Notice
_________________________________________________________________________________

FENCING NOTICE
(Dividing Fences Act 1991)
 
*To: ____________________________________
        *(Name and address of adjoining land owner)
 
The fencing work described below is required between our adjoining properties. I would be pleased if you would share the cost as shown. From:

________________________________________
(Name) (Address)

________________________________________
(Signed) (Date)
 
PROPOSAL:
 
1. Properties affected (street address)
 
A ___________________________________ owned by ___________________________________

B ___________________________________ owned by ___________________________________


2. Position of fencing work (on boundary line, or as shown on attached plan):

______________________________________________________________________
 

3. Fencing work proposed to be carried out

________________________________________________________________________________

________________________________________________________________________________
(include length, height and type of materials)  


4. Estimated cost: $_____________      


5. Sharing of cost:
 
(a) __________will pay for the fencing work and will be paid half the estimated cost by __________on completion, OR
 
(b)
____________________________________________________________________________________________

____________________________________________________________________________________________
(insert another arrangement)

                                   
AGREEMENT TO FENCING

Property A                                                                         Property B

I agree to the above proposal I agree to the above proposal


………………………………..                                                 ………………………………….
(Signed) (Date)                                                                (Signed) (Date)



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