Dividing Fence Rules in NSW: Costs, Notices and Court Orders

What it is

A dividing fence is the fence on or near the common boundary of two adjoining properties. In NSW the rules sit in the Dividing Fences Act 1991. The Act covers who pays, what counts as a "sufficient" fence, how to serve a notice on the neighbour and what happens if the neighbour will not agree or will not pay.

The starting position is simple. Adjoining owners share the cost of a sufficient dividing fence equally. If you want something fancier than sufficient, you pay the extra yourself.

When the Act applies

The Act applies to most residential boundaries in NSW. It does not apply to Crown land that is not leased or licensed for occupation. It does cover fences between residential lots and commercial lots. Owners corporations under strata title are treated as the adjoining owner for common property boundaries.

A retaining wall is not a dividing fence under the Act unless the wall also performs the fence function. Most retaining wall disputes fall back on common law nuisance or contract instead of the fencing regime.

What counts as a sufficient fence

The Act does not lock in a fence type. Section 4 lets the court or tribunal decide what is sufficient by looking at the existing fence, the purpose for which adjoining lands are used, the kind of fence usual in the locality and any policy of the local council. A 1.8 metre paling fence between two suburban houses is the textbook example. A post and wire fence might be enough between two rural lots.

If one owner wants a higher specification (steel, brick or Colorbond instead of timber) the other owner only contributes the cost of the sufficient fence. The owner asking for the upgrade covers the gap.

The fencing notice

The procedure to make a neighbour contribute is to serve a fencing notice under section 11. The notice must set out the boundary line or proposed line of the fence, the type of fencing work proposed, an estimated cost and how the work is to be done. The other owner has one month to respond.

If the neighbours agree, the work goes ahead and the cost is split. If the neighbours do not agree, either party can apply to the Local Court of NSW or the NSW Civil and Administrative Tribunal for an order. The Land and Environment Court does not handle these matters.

Urgent fencing work

Section 11(2) allows urgent fencing work without a notice if a fence has been destroyed or damaged by accident or other cause and immediate work is needed. The owner doing the work must serve notice within a reasonable time afterwards and can still recover half the cost.

How the court or tribunal decides

The Local Court and NCAT have concurrent jurisdiction under the Act. NCAT is the cheaper and faster path for most residential disputes. The Local Court is the right venue if the dispute is bundled with a wider boundary or trespass claim.

The court or tribunal can order:

• The work be carried out
• The line of the proposed fence
• The kind of fencing work
• The cost share between the owners
• Costs of the proceedings

The tribunal can also order one owner to pay the whole cost where that owner caused the damage by negligence or a deliberate act.

Boundary disputes are a different problem

If the parties cannot agree on where the boundary actually sits, the fencing dispute will not settle until the boundary does. A licensed surveyor is the right first call. The Real Property Act 1900 and the Conveyancing Act 1919 cover boundary determinations and applications for redefinition. Once the boundary is settled, the fencing notice procedure can run on the correct line.

Practical sequence

1. Talk to the neighbour first. Most fencing matters resolve without a notice.
2. Get a written quote from at least one fencing contractor.
3. Check council requirements. Some councils control fence height, materials and front boundary fences. A development consent might be needed for a high fence or a fence near a heritage item.
4. Serve a fencing notice that meets section 11.
5. Wait one month. If no agreement, apply to NCAT.
6. Keep records of everything. Photos of the old fence, quotes, the notice and any reply.

Builder context

Residential builders running renovations or new builds in NSW often need a fence rebuilt to enable site works. The owner is the right party to serve the fencing notice on the neighbour. A builder cannot use the Act on their own behalf. If the contract requires the builder to manage the fencing process, the builder is acting as agent for the owner and the notice should still be in the owner's name. Build a small allowance for fencing into the contract because the timing is rarely under your control.