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The Dividing Fences Act, 1991 (NSW) provides the legislative framework for dealing with boundary fences as between adjoining owners/neighbours.
The Dividing Fences Act provides that adjoining owners of property are required to share equally the costs of a “sufficient dividing fence”, what is a “sufficient dividing fence” will depend upon all the circumstances of the case.
In deciding what a “sufficient diving fence” is, a court will take into account the following:
While the general rule provides for neighbours to equally share the costs, there are exceptions which include:
The Dividing Fence Act provides in section 9 that when a fence has been damaged or destroyed and in the circumstances requires urgent fencing 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 be reviewed by a court on the application by an owner within one month of the completion of the restoration work.
The issues of Crown liability for dividing fences have received different treatment in different states. South Australian Capital Territory has legislated to provide limited liability attaching to the Crown but the New South Wales Parliament rejected that approach when it implemented the Act – see section 25 of the Act.
If there is a dispute about the standard of fencing required, one neighbour must give the other a Fencing Notice
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:
Pursuant to section 21 of the Act, a Section 11 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, the neighbour can apply to a Local Court for an order for the proposed work to proceed.
Fencing agreements should preferably be reduced to writing. A neighbour who goes ahead and constructs a fence, without first consulting and coming to an agreement with the other neighbour first, might not be able to recover half of the costs in a court.
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