DIVIDING FENCES AND RETAINING WALL LEGISLATION

The Dividing Fences Act 1991 (NSW) addresses how the cost of a dividing fence is shared between adjoining land owners where an owner wants to erect a dividing fence or repair or renovate an existing dividing fence.

It sets out the minimum requirements and owners may always agree to an arrangement exceeding those requirements. The Act also details the procedure for resolving disputes involving the cost, type and position of a fence.

Under the Act, a dividing fence means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary. The cost of a dividing fence includes the cost of all related fencing work, such as surveying, preparation of land, design, construction, replacement, repair or maintenance of the dividing fence.

It is worth noting that the Dividing Fences Act only covers situations where a financial contribution is sought. If your neighbour wants to bear the whole expense of a fence on their land, you may not be able to influence the type of fence that they decide on. However, if the proposed fence requires council approval, you may have the opportunity to lodge an objection.

Who Do You Have To Talk To?

Under the Act, an owner is one or more of the persons who own the land, or a tenant with a lease with more than five years left to run. A more specific definition of ‘owner’ is found in section 3 of the Act.Sharing the cost of a dividing fence.

Under the Dividing Fences Act, adjoining owners must share the cost of a ‘sufficient dividing fence’. This is a fence that is 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.

The factors considered by a court or local land board in determining whether a dividing fence is ‘suficient’, as set out in section 4 of the Dividing Fences Act are:

• the standard of the existing fence (if there is one)
• the uses or intended uses of the adjoining lands which the fence divides
• privacy or other concerns of the land owners
• the kind of fence usual for the local area
• any local government policy or code, or environmental planning instrument relevant to the dividing fence
• and the locality

If an owner wants a fence of a higher standard than is required to sufficiently separate the properties, that owner must pay the additional cost.

A swimming pool fence may be used as a dividing fence on two sides of a boundary. The Swimming Pool Act 1992 (NSW) requires that pool fences are 1.2 metres high and child resistant. Swimming pool construction requires council approval, which will include requiring fencing.

If an existing dividing fence is damaged or destroyed by one owner or someone with that owner’s permission, that owner must pay for the work required to restore the dividing fence.Public authorities with control over Crown lands, parks, reserves etc do not have to contribute to fencing costs. However people living next to such properties may be able to negotiate with the authority for a contribution.

Practical Steps

If you want to build a fence or repair one you should consult the adjoining owner first. It is helpful to get several quotes so that you and your neighbour can both agree on a price. Discussions should also cover the type and height of the fence.

Council approval is generally required for fences over 1.8 metres high and for front fences. Sometimes there are restrictions on what style of fence can be built in particular areas, due to council codes or policies, heritage protection orders or restrictive covenants (eg a subdivision may have an agreement that all fences be of a particular type). It is advisable to check with local council before proceeding.

Reaching An Agreement

If you and your neighbour both agree on the price and proposed construction of the fence, you should both put the terms of the agreement in writing and both sign the agreement.The agreement should cover all relevant details of the cost and design of the fence including:

• type of material
• height
• provision for removal of existing fence
• colour
• cost
• position of fence