Dividing Fences Can Divide Neighbours

By
ITC1
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Does your fence look wonky?  Are you unhappy with your fence?  Is your fence wooden when you want a colourbond fence?  What do you do if you don’t like the fence you share with your neighbour?

Disagreements over dividing fences can be a source of annoyance and friction between neighbours. Sometimes a simple disagreement over a fence can escalate into much more serious situations with police involvement, AVOs and the breakdown of what otherwise had been a good relationship between neighbours.

In New South Wales, the Dividing Fences Act 1991 (DFA) regulates the dividing fences between neighbouring properties and who is responsible for the cost of fencing work.  The DFA addresses 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.  

What is a Dividing Fence?

Did you know that a fence can be made of any material and includes hedges. A dividing fence is a fence separating the land of adjoining owners, whether it is on the common boundary or not.

Fencing work means: 

(a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and

(b) the surveying or preparation of land along or on either side of the common boundary of the neighbouring properties for such a purpose.

What costs can you ask your neighbour to contribute?

The cost of a dividing fence includes the cost of all related fencing work, such as preparation of the land, as well as the design, construction, replacement, repair and maintenance of the fence.  It does not include the cost of any work on a retaining wall required to provide support for land, trimming, lopping or the removal of vegetation except for the purpose of fencing work for a sufficient dividing fence.

You will be required to pay 50% of the costs.  However, you are not required to pay any additional cost if your neighbour wants a fancy fence ( ie a fence of a higher standard than is required for a sufficient dividing fence).

A neighbour will have to pay the full cost if the existing fence is damaged, either deliberately or negligently, by the neighbour or by someone else with the neighbour’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.

You must notify your neighbour prior to replacing the fence (if you want cost reimbursement)

If you want your neighbour to share in the costs of a new fence you cannot go ahead and build a new fence and then seek reimbursement.  You must consult with your neighbour and serve a notice to fence.  The only exception to this rule is where the fence requires urgent repairs.   Urgent repairs can be carried out without giving your neighbour notice and you can ask the neighbour to contribute to half the cost later. If your neighbour does not contribute you can recover the cost in the Local court. You will need to prove the repairs were genuinely urgent and that the circumstances made it impractical to first serve a Notice to carry out fencing work. Some examples may include: animals likely to escape, exposing neighbours/passers by to an unprotected swimming pool.

Once you and your neighbour have agreed on the type of fence and the costs, it is a good idea to get the agreement in writing.

What if there is a disagreement?

What happens if you and your neighbour cannot agree on a fence or the need to replace a fence?

If there is no agreement within one month after a neighbour serves a notice to fence on your neighbour either owner can apply, usually to the New South Wales Civil & Administrative Tribunal (NCAT) or the Local Court, for a fencing order.

The NCAT/Local Court will notify the adjoining owner of the application. If the adjoining owner objects, a hearing is held. A court can make orders about the following

  • whether a fence should be built;
  • the location of the fence;
  • the type of fence;
  • how the costs will be shared;
  • when the fence will be built; and
  • which owner will do the fencing work.

But before your rush off to court, you might want to think about the repercussions. The losing neighbour will be ordered to pay the winning neighbour’s court costs.  You may want to consider mediation.  Mediation is a less formal and less confrontational process, and it’s free. The Community Justice Centres are free mediation services funded by the NSW Government. They are located throughout NSW. Contact details are: 1800 990 777

It may not be a fence that is the issue.  What if your neighbour has planted a hedge that is creating issues.  What can be done?  Find out more here.

The best advice is to speak to your neighbour first and work things out in a cordial fashion.

 

Do you have a local issue you would like help with? ITC is here to help just email us at [email protected]