Dividing Fences

By Richard Watson

Background

The Dividing Fences Act, 1991 (NSW) provides the legislative framework for dealing with boundary fences as between adjoining owners/neighbours.

Building and repairing a dividing fence

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.

What is a “sufficient dividing fence”?

In deciding what a “sufficient diving fence” is, a court will take into account the following:

the standard of the existing fence
the purpose of the fence
the way the land on either side of the fence is used
privacy or other concerns of each neighbour
the kind of dividing fence that sis usual in the area
any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated
any local Council requirements, covenants ands the like relating to fences in the area

Who pays?

While the general rule provides for neighbours to equally share the costs, there are exceptions which include:

if one neighbour wants a fence of a standard greater than a “sufficient dividing fence”, for example, if you want a fence that contained more expensive materials such as brick, besser blocks and the like when the predominant fence in the local are was a paling fence, then you may have to pay for the additional costs involved;
if one neighbour deliberately or negligently damaged or destroyed a fence, he would be responsible for the full costs of the fencing.

Contributions when urgent fencing work is required

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 liability of the Crown

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:

A requirement that an adjoining owner contribute to the fencing works;
The estimated costs of the works and how those costs are to be shared between the adjoining neighbours;
A precise description of the land on which the works are to be carried out and specifically, whether the works are to be carried out on the boundary line or on some other line preferably with reference to a plan or drawing; and
The type of works to be carried out, such as the length, height and type of fence to be installed.
We suggest the Notice annex a quote (or two) with the full description and costs.

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.

Generally

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.

Please note that our provision of any telephone advice to you is only a general discussion to assist as to whether you wish to instruct us. Telephone discussions should not be construed as legal advice and are not to be relied upon. Legal advice which you can rely on can only be properly provided by us to you at or following an initial conference. We are not responsible for any action you may take or fail to take based upon the provision of our telephone advice to you. If you wish to arrange a conference, please contact us.

Online enquiry form

Watson & Watson are always available to provide expert legal advice and answer any questions you may have.

Name:	*
Email:	*
Phone:	*

Please send me advice on:

Building & Construction Law
Family Law
Commercial Litigation
Conveyancing
Criminal Law
Insolvency/Bankruptcy
Wills & Probate

Comments:

Recent Cases

The Collapse of a Young Couple's Dream Home - 17/05/2012

David Quinn was approached by a young married couple with infant children who had purchased the “Dream Home” in a satellite suburb of Campbelltown in the early 1980s. The young couple’s “Dream Home” collapsed around them in 1984.

Successfully Defending a Property Relationships Act, 1984 Claim - $482,500.00 - 17/05/2012

The principal of the firm, Richard Watson, was retained in 2009 to assist a middle aged female client in relation to a claim made by her former de facto spouse in respect of Supreme Court of New South Wales proceedings.

Building and Construction Industry Security of Payment Act - 30/09/2010

Adjudicator’s decision is now able to be challenged for jurisdictional error in the Supreme Court. The Supreme Court, Court of Appeal in September 2010 held that a decision of an adjudicator...

Defective Building Work Residential Home - Insolvency - 30/09/2010

Watson & Watson act on behalf of the Home Owner in relation to a claim against a Builder which became insolvent and was unable to complete their many projects. Generally, Creditors were out of pocket and an arrangement was entered...

+ View more recent cases

Testimonials

14/05/2012

"Richard,
Many thanks for taking my call on Friday, your advice was very helpful.
Regards"
- J.M, Abu Dhabi

21/03/2012

"G’day Richard,
Thank you for the win at the Tribunal on Friday, I do appreciate the discount in fees that you gave me it has helped me out a lot. I also like to thank Dave and Kim for their mountain of paperwork they had to go through just to build the case."
- G.S, NSW

1/03/2012

"Dear Kathy
It was lovely meeting you, thank you for taking on my case and providing much appreciated support”
- M.R, North Sydney

28/02/2012

“Dear Richard,
Many thanks again for all your work on my family law matters & my will.
All the best,"
- N.G, Sydney

7/11/2011

Many thanks for all your support in securing our unit. We very much appreciate your help. Kind Regards.
- M & C, Hills District

1/11/2011

Absolutely fabulous, we are definitely keen on this strategy. Very happy with your process so far. Many thanks again.
- R.E, Sydney

9/10/2011

"Thank you for your email and effort to help me... I do not know what I would have done without you."
- K.S, Byron Bay

2/10/2011

"Thanks for yesterday, great advice and some more clarity in my mind on how we will be proceeding."
- P.B, Sydney

29/09/2011

"Richard. Many thanks. We are very appreciative of the professional assistance given to us in relation to our claim for defective building works. With your professional help we were able to come to a satisfactory resolution to our long standing problem"
- J.H, Gosford

20/09/2011

"Many thanks for all the work & effort you have done to help us secure our unit. We very much appreciate the time you have taken."
- M.C, Sydney

22/07/2011

"I am personally grateful for the effort put into this by all concerned. I do believe the issues have been thoroughly aired and we can now finalise the matter."
- J.T, Sydney

18/07/2011

"To Chris Jefferies,
We wish to thank you for the efficiency you have displayed in the Conciliation Conference and for settling the matter for us."
- Holden Barlow Solicitors, Perth

28/06/2011

"Thanks again for all your help. You've been an absolute delight to deal with."
-B.M, Sydney

3/06/2011

"Thank you for your advice and taking my case in this matter. Peter has spoken so highly of you."
- S.Y, Sydney

26/05/2011

"Wonderful news!
Thank you kindly for your great work, I am so very pleased and thrilled with the result.
My life is so much brighter and we can stay here in Australia.
All my family are grateful and so happy."
- L.S, Sydney

25/05/2011

"I would also like to acknowledge all Dennis' expertise and hard work."
- P.L, Sydney

17/05/2011

"Just to say a big thank you for today! I am delighted with the result."
- J.M, Eastern Suburbs

11/05/2011

"I am writing to send my deepest thanks for yesterday's outcome. Your efforts in pressing the case have been nothing short of magnificent.

I have been (in part) of a mind set that defeat and rejection was to be my soul mate on this issue. But yesterday's fine transition from nothing to something is such an incredibley happy outcome. Your considered opinitions, general care and legwork, as a commmiteed and compassionate advocate will stick as a life long memory. I feel extremely fortunate and proud of what has been achieved.

I understand too, with the joy comes the responsibility. The message of dilligence is not lost and is branded into the forefront of my mind.

Yours in sincere thanks."
- D.G, Sydney

11/05/2011

"Excellent! Progress. The ball is in your court. Congratulations."
- M.D, Sydney

4/05/2011

"Despite trying very hard to come to amicable agreement we found ourselves in the dreadful position of constant intimidation correspondence from the solicitors of the buildings who undertook residential renovations. As a result I instructed Richard Watson to act in the matter. It turned out that having a firm of solicitors highly experienced and qualified in the very complex area of building law proved essential and indeed saved the day. This together with their kindness and open and honest frankness made something that was looking impossible into a great success."
- M.N, Eastern Suburbs

21/04/2011

"The letters to the solicitors on the other side are perfect. Please send it."
- C.F, Lower North Shore

20/04/2011

"Thank you very much for you have done job for me!"
-S.L Parramatta

31/03/2011

"We greatly appreciate the efficiency and also the time to see us the Tuesday night before we exchanged contracts. We moved in on the weekend and are very happy."
- PB-H, Lower North Shore

29/03/2011

"I appreciate the professional assistance given."
- D.D, South West Suburbs

4/03/2011

"You have been wonderful and worth every penny."
- P.H, Canada

4/03/2011

"I'd just like to say a big thank you!
I appreciate your help and patience throughout."
- J.F, Eastern Suburbs

21/01/2011

"Thank you, thank you, thank you."
- Z.H, Sydney City

1/12/2010

"I found myself in a difficult situation and was fortunate to engage Richard Watson of Watson & Watson. Richard helped explain the options and alternatives available to me and the likely outcomes having regard to all matters to be taken into account. Richard helped me come to a very satisfactory resolution of the matters and as a result I have been able to secure accommodation for myself and children in the local district in a relatively short period of time. In addition to the advice as to the various alternatives, options and likely outcomes I found Richard caring.

Throughout when things were difficult Richard was a steady influence so that I could achieve the optimum outcome for all concerned. I recommend Watson & Watson for any other person in similar circumstances. "
-S.J.G Cremorne

1/11/2010

"Just would to wish you a very Merry Christmas. I will never forget your kindness and generosity - and strength at times I feel you worked with the mighty Lord - quite testifying!
I have so much gained from the experience in many ways."
Best Wishes and Many Regards,
-R.L

1/08/2010

"Hi Richard ,
This is just a brief note of thanks for taking care of me through this horrible situation.
I know you are a pro but for those of us that are faced with the reality... it's scary & sad. "
Best Regards,
-D.T

1/08/2010

"I was in a position that I had exchanged on the purchase of a property and I had agreement from my ex for funding the purchase, however, after I exchanged to purchase, my ex changed his verbal agreement. I came to Watson & Watson as my daughter had received a very good outcome with understanding. Watson & Watson in a very short period of time achieved a cost effective settlement which allowed me to complete my purchase. Their experience relating to various alternatives gave me other alternatives and allowed me to conclude the finalization of the property matter with my ex and the purchase of the property in a very short period of time and to my utmost satisfaction."
-K.S Leura

1/07/2010

"Watson & Watson have performed exceptionally in a cost effective manner for the Bank for in excess of 20 years and never recovered less than expectations. Their work is professional, cost effective and always above expectations. In all my years with Watson & Watson the Bank has only lost one case and that was the first case in which I was at the Bank instructing another solicitor for the Bank and Watson & Watson acted for the customer against the Bank, our solicitor lost, Watson & Watson acting for the customer against the Bank WON."

"I have been instructing legal firms in relation to litigation and recovery actions for the Bank for more than 20 years. Richard Watson and his team are result driven. The costs on a case by case basis is significantly less than other firms which I instruct from time to time on behalf of the Bank."
-H.B Bank Sydney

1/06/2010

"Dear Richard,,
Many thanks for all that you have done.
It is been a fantastic result."
Thank you
Best Wishes"
-R.L Surry Hills

31/05/2010

"My family bought property in the 1950's and registered it in the name of my brother. My brother assumed ownership of the property. Nothing was done until Richard Watson became involved and the matter was settled with a substantial payment to me, more than doubling my ample wealth."
-L.S Canberra

1/05/2010

"I was concerned as to the costs of the process. Watson & Watson are focused on results and means by which I could provide information required which assisted in a cost effective resolution. Watson & Watson assisted in identifying the issues, alternatives and options and what was the best way to resolution."
-R.B

1/02/2010

"I went to two other solicitors and then Watson & Watson before making a decision. Watson & Watson raised issues that other solicitors had not thought of. Richard Watson explained clearly issues relating to spousal maintenance that may arise now and in the future and a method of protection from future claims. Not only did Watson & Watson deal with the immediate needs but took steps relating to protection in the future and advice in relation to estate and other matters following the break up of my relationship. I have recommended Watson & Watson for others int he unfortunate position of break up of their relationship."
-A.L Pymble

+ Read more testimonials