A dividing fence is a fence that separates the lands of adjoining owners.
The fence may be a structure of any material, a ditch, an embankment or a vegetative barrier (eg hedge). It does not include a retaining wall or the wall of a building.
The cost of a dividing fence includes the cost of all related fencing work, such as preparation of the land, as well as the design, construction, replacement, repair and maintenance of the fence.
Local Council approval
Where the fence is not identified as Exempt Development, an approval will be required. That approval could be a Complying Development or a Development Application may be required.
Costs of a dividing fence
Adjoining owners must share the cost of the fence, except that:
- An owner must pay the additional cost if they want a fence of a higher standard than is required for a sufficient dividing fence;
- An owner will have to pay the full cost if the existing fence is damaged, either deliberately or negligently, by the owner or by someone else with the owner’s permission. If the fence is damaged by a tenant, the owner must pay for the work even if they plan to claim the cost from the tenant;
- Public authorities with control over Crown lands, parks, reserves etc do not have to contribute to fencing costs. However people living next to such properties may be able to negotiate with that authority for a contribution.
- Common trusts are subject to the Dividing Fences Act 1991, and are liable for contributions to fencing.
A sufficient dividing fence is defined as a fence which separates the properties, for example a paling fence in a residential area, or a wire and steel star post fence in a rural area. The owner who seeks a fence of a higher standard is liable to pay the difference in the cost between that fence and a sufficient dividing fence.
Resolving fencing disputes
Advice relating to fencing disputes should be sought from from Legal Aid Services, Chamber Magistrates at the local court, LawAccess NSW, Community Justice Centres or private lawyers.
More information
For more information on dividing fences and dispute resolution, please visit Law Assist for assistance on:
- Who should pay?
- What type of fence?
- Where should the fence go?
- How to seek an agreement with your neighbour.