What is the definition of a dividing fence?
A separating fence can be made of any material (brick, paling, colorbond, stonewall) or flora (such as a Photinia or Camellia hedge), but it does not contain a retaining wall unless it is required to support the fence.
The Dividing Fences Act of 1991 states that the following factors must be considered when determining the standard for a sufficient dividing fence, regardless of the material to be used:
- a) the existing fence (if any);
- b) the purpose for which the adjoining land is used or intended to be used;
- c) the adjoining land owner’s privacy or other concerns;
- d) the type of dividing fence in the locality;
- e) any fencing policy or code adopted by council or any relevant environmental planning department.
The first step in changing the fencing is to speak with your neighbour. If you have an existing fence (paling fence) that has to be repaired, you are equally responsible for the expense of replacement (if your neighbour agrees). However, if you choose to replace the paling fence with a colourbond fence, you will be responsible for the extra cost (i.e. cost estimate for paling fence and subtract this from the cost of the colourbond fence). Unless there is a swimming pool involved or the adjacent land is owned by Council or the Crown, each owner is equally responsible. Any agreement on fence should be written down.
A neighbouring owner is accountable for the entire cost of the fencing work required to replace a dividing fence that has been damaged or destroyed by the owners or a person who has entered the land with the owner’s explicit consent’s careless or purposeful act. Any fence that has been damaged or destroyed must be restored to a fair standard based on its condition prior to the damage or destruction.
If urgent fencing work is required and serving notice in respect of the separating fence is impractical, the urgent fencing work may be carried out by an adjoining owner. The other adjacent property owner is responsible for half of the expense (subject to conditions).
If the surrounding property owners agree on the fencing project, the agreements should be written down. The contract should include all specifics, such as the height, material, colour, cost, and location of the fence, as well as any agreements for the removal of any existing fence and any further work that may be required, as well as the cost.
When There Isn’t a Consensus
Adjoining property owners might meet at a Community Justice Centre to work out a deal. If no agreement is reached within one month of the notice being issued, either owner can seek a work order from the local court or the NSW Civil and Administrative Tribunal (NCAT).
NCAT must evaluate all of the circumstances of the case while making a decision, including:
- any existing dividing fence;
- the uses or proposed uses of the surrounding lands;
- the land owners’ privacy or other concerns;
- the type of dividing fence commonly used in the area;
- any local council fence policy; any applicable environmental planning instrument
Its orders may include decisions on the following:
- The work to be done, including the type of fence;
- the contributions from each of the bordering owners;
- the portion of the fence to be built or repaired by either owner;
- the time period for the work to be done;
- any compensation to be given for land loss;
- whether a fence is needed
If an adjoining owner fails to comply with a local court or NCAT order, the other adjoining owner can perform the agreed-upon work and recover the agreed-upon amount or half of the cost of the work from the defaulting owner.
Remember that a separating fence can also be used as a hedge. To avoid any disagreements, talk to your neighbour or get a written assessment from a landscaper before trimming or pruning. It may not be as simple as chopping pieces of the hedge away if it is generating problems. Only on your side of the fence can you prune or cut hedges. If it is cut or pruned in such a way that the hedge/fence is destroyed, you may be held accountable for damages, replacement, and court costs. Pruning or cutting a tree is not a straightforward task. If you and your neighbours are unable to reach a resolution, you may be eligible to file a claim under the Trees (Disputes) between Neighbors Act 2006 (NSW). Other statutes, such as the Limitation Act of 1969, the Land & Environment Court Act of 1979, the Civil Procedures Act of 2005, the Uniform Civil Procedures Rules of 2005, and the Land & Environment Court Rules of 2007, come into play.
The Bottom Line
You don’t need a dividing fence between your houses if neither you nor your neighbour wants one. If one of you wants to build a dividing fence, the other is required by law to pay half of the costs to build a “sufficient” barrier, which is defined as a fence that meets the area’s minimum fencing standards. If one of the parties desires a more expensive fence, that party must pay the difference.
Because you and your neighbour share the fence, any maintenance or replacement costs must be shared. If the fence is damaged as a result of human error or irresponsibility, the party who caused the damage is accountable for the repair costs.
If you and your neighbour can’t come to an agreement over a separating fence, you may need to consult a property lawyer and file an application with your local government. We can connect you the best property lawyers in major city in Australia.