Dividing Fences—the great neighbourly divide
The ‘dividing fence’ is often a hot topic for neighbours. Help, however, is at hand in the form of the Dividing Fences Act 1992 (NSW) (Act).
The Act empowers both NCAT and the Local Court to resolve disputes about dividing fences. NCAT has an unlimited jurisdiction for these matters, but the jurisdiction of the Local Court is limited to matters involving a value of up to $100,000.
The first question to be considered is whether the structure is a ‘fence’ because it is only ’fencing work’ that falls within the Act and can be judicially considered. The definition of a fence is broad and includes hedges, structures, ditches, embankments and natural watercourses that extend along the boundary separating the adjoining land.
A fence does not have to be on the boundary and it is not either of:
* a retaining wall (unless it is part of a foundation or support necessary for the support or maintenance of the fence), or a
* a wall that is part of a house, garage or other building,
While the Act covers all fences defined as ‘dividing fences’, it does not cover common property fences which divide two lots within a strata scheme, or common property fences which separate a lot from the communal property.
If there is no sufficient dividing fence then the general principle is that you and your neighbour are liable in equal shares for contributing to fencing work that would result in a sufficient dividing fence.
However, the Act does not define what is a sufficient dividing fence and herein lies the problem—because what is sufficient for one neighbour may not be sufficient for the other.
Are you having problems with your neighbour regarding a dividing fence?
Clare Peacock is an experienced construction lawyer working on Sydney’s Northern Beaches. Clare provides practical, cost-effective building approval advice to property owners, builders and strata managers. Services include residential building disputes, body corporate issues and strata building problems.