Dividing fences are fences that separate the land of different owners whether the fence(s) is on the common boundary of adjoining lands or on a line other than the common boundary. A dividing fence does not include a retaining wall.
A “sufficient fence(s)” is:
as prescribed by a local government local law; of any standard agreed upon by adjoining owners provided that it does not fall below the standard drescribed by the relevant local government local law; substantial, one that is ordinarily capable of resisting the trespass of cattle and sheep; or as determined by a Magistrate in a Magistrates Court to be a sufficient fence(s).
Note: A fence which accords with (c) or (d) is only a sufficient fence where no local law or agreement is made.
If you decide to erect dividing fences of a higher standard than a sufficient fence without obtaining the agreement of the adjoining owner, you may only claim half the cost of erecting and maintaining a sufficient fence, as defined above.
Does the Dividing Fences Act 1961 apply to everyone?
No. The Act does not bind the Crown, so where the adjoining land is owned by the Commonwealth, state or a local government and is used for public purposes (for example, roads parks or government offices) the local government or Commonwealth or state government department is not required to contribute to the costs of erecting or maintaining dividing fences.
The Act does not interfere with agreements, contracts or covenants relating to dividing fences between owners of adjoining land. It may be worth checking your Certificate of Title or with the Department of Land Information to enquire whether there are any covenants relating to dividing fences between you and adjoining landowners. Any agreement, contract or covenant relating to dividing fences overrides the Act.
Enter your state in the box below and click search to locate the Dividing Fences ACT for your state or territory.
Good fences make good neighbours
Document Actions by Kate Rogers, Law Society of NSW October 2005
If you don't want a fence on the boundary of your property, are you obliged to have one? The answer is Yes.
The question of fences is, surprisingly, such an important one that it warrants its own legislation — The Dividing Fences Act (NSW), ...free download.
Some blocks of land may have their own positive building covenants which require the erection of quite specific fencing. This might occur in a new estate where the developer is trying to achieve a consistent look to the overall design.
Most commonly, a covenant in relation to fencing will be one put on by the developer, stating that the owner can't ask the developer to contribute to the cost. The general rule with dividing fences is that the neighbours split the cost 50/50. If both neighbours can agree on the location, style and cost, then they can simply proceed. It is, however, desirable to record the agreement in writing.
Council set the laws by which fences are to comply, usually detailed in the Council Development Control Plan, (obtained through your local council). For this reason different council shires can have different policies in regard to fencing, so no one rule can apply to all fences. Front fences often have to comply with council requirements, whereas side or boundary fences rairly do.
When considering the design of your new fence it is wise to consult with the council inspector to see if any particular laws may apply in your situation.
In general, you are allowed to replace a fence(s) with a similar style, height and design without prior approval. If you property does not have a fence, it would be reasonable to assume the council would approve new fencing if it was similar to the surrounding existing fences, but a check with the council is advised.
If the fence(s) you require are dividing fences between yourselves and other private residences, it would also be reasonable to assume the council would not have any issues if both the neighbours whose properties the fence(s) divides, are in agreement.
As a general rule, most councils do not require approval for dividing fences under 1.8m, (6 feet) in height, or front fences under 1 metre.
For more information on your council fencing guidelines, type your council area into the box below and select search.
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