What happens if your next door neighbour approaches you about building a new fence, but you disagree because you think the existing fence is just fine?
Before you know it, a friendly disagreement quickly escalates into a more serious conflict that requires legal intervention. This is one of the most common scenarios involving neighbourly disputes.
In New South Wales, the Dividing Fences Act regulates all dividing fences to inform homeowners of their responsibilities and help settle disputes without the need for escalation. The Act defines a dividing fence as a fence that effectively separates adjoining properties. This fence may be made of any material. Ditches, embankments, and plant barriers such as hedges are also considered dividing fences.
The Dividing Fences Act states that neighbours must equally share the cost of:
- Building a dividing fence, where there is not one, or
- Repairing or replacing a dividing fence which has not been damaged, destroyed or has deteriorated, or
- Repairing or replacing a dividing fence that is not a “sufficient” dividing fence.
In some situations, costs may not have to be shared equally, for example, where a neighbour wants a dividing fence that is of a greater standard than what is “sufficient”, or where the fence was damaged or destroyed by one neighbour.
When you need to build or replace a dividing fence, the type of fence that is chosen will depend on:
- what you and your neighbour agree to
- any local council or legal requirements that apply in your area
- limits that apply to your land, and
- what will be a ‘sufficient dividing fence’ in your situation.
Adjoining homeowners must come to an agreement before any work is done, especially in instances when the cost is split evenly. Technically, your neighbour has every right to do whatever they want if the work is within their property boundary. This includes constructing a fence that meets fencing height standards. But if they fail to inform you, they cannot enter your property to carry out the fencing work.
If you and your neighbour cannot reach agreement, either of you can serve a Fencing Notice. If you still can’t reach an agreement after a month has passed, you or your neighbour can apply to the Local Court or the NSW Civil and Administrative Tribunal for orders about the fencing work to be done.
When you need to replace, repair or build a new fence it’s important to understand your rights and obligations under fencing law. Contact our Property Team for help. If you and your neighbour are in dispute at the moment, consider mediating to solve the issue. Let one of our experienced Mediators at Macarthur Mediations help.
