What is a dividing fence?
A dividing fence can be of any material (brick, paling, colourbond, stonewall) or vegetation, such as a Photinia or Camellia hedge so as to create a division between properties but does not include a retaining wall unless it is required to support the fence.
The Dividing Fences Act 1991 states that when determining the standard for a sufficient dividing fence, notwithstanding the material to be used, is:
a) the current existing fence (if any);
b) the purpose or which the adjoining land is used or intended to be used;
c) the privacy or other concerns of the adjoining land owner;
d) the kind of dividing fence in the locality;
e) any policy or code relating to fencing adopted by council or any relevant environmental planning instrument relating to adjoining lands;
f) registration of covenants attaching to the land registered with the Land Titles Office.
If you want to change the fencing, the first step is to talk to your neighbour. If you have an existing fence (paling fence) and this is in need of repair, then (and if the neighbour agrees), you are equally liable for the cost of replacement. However, if you want to remove the paling fence and put in a colourbond fence, you are liable for the additional cost (i.e. cost estimate for paling fence and subtract this from the cost of the colourbond fence). Each owner is equally responsible unless a swimming pool is involved or the neighbouring land is owned by Council or the Crown. Any agreement as to fencing, should be made in writing.
An adjoining owner is liable for up to the whole cost of the fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or person who has entered the land with express consent of the owner. Any fence is to be restored to a reasonable standard having regard to its state before the damage or destruction.
If urgent fencing work is required and it is impracticable to serve a notice in respect of the dividing fence, an adjoining owner may carry out the urgent fencing work. The other adjoining owner is liable for half the cost (subject to conditions).
What if you don’t agree?
If you cannot agree you can:
a) go to mediation at the local Community Justice Association; or
b) you can apply to the Local Court for a Fencing Order.
A Fencing Order is an order about what fencing work should be done and how the costs should be shared. You will need to fill out an application for the court and prepare for a hearing and present your case at the hearing.
There may be an issue as to where the actual boundary is. If you can’t agree on where the boundary is, you can serve a “Boundary Notice” on the other party and apply to the Registrar Generals Department for a Determination of Title Boundary. There is a fee applicable to the Land Titles Office for lodgement and investigation by the surveyor of the boundary.
Going to Court Can Be Costly
Remember, a dividing fence can be a hedge. Before cutting or pruning, to avoid disputes, talk to your neighbour or obtain a landscapers written opinion before you undertake any work. If the hedge is causing damage it may not be a straight forward matter of cutting parts of it away. You can prune or cut hedging only on your side of the fence. However if it is cut or pruned in such a way as to destroy the hedge/fence, you may be liable for damages and replacement and court costs. There is no simple rule as pruning or cutting a tree. If you cannot come to an agreement you may be able to make an application under the Trees (Disputes) between Neighbours Act 2006 (NSW)). Note other legislation comes into play such as the Limitation Act 1969, Land & Environment Court Act 1979, Civil Procedures Act 2005; Uniform Civil Procedures Rules 2005; Land & Environment Court Rules 2007.