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A dividing fence is a fence that separates the land of different owners whether the fence 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” is:
a fence prescribed by a local government local law;
a fence of any standard agreed upon by adjoining owners provided that it does not fall below the standard rescribed by the relevant local government local law;
a substantial fence that is ordinarily capable of resisting the trespass of cattle and sheep; or
a fence determined by a Magistrate in a Magistrates Court to be a sufficient fence.
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 a dividing fence 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 a dividing fence.
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.
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.
Legal letters drafted especially for you to send to your neighbours (only $4.95), ...details. Just cut and past the required letters to your computer and send as needed.
NEIGHBOUR DISPUTE RESOLUTION
AUSTRALIA & NEW ZEALAND
If your neighbour does not agree to the fence, you need to obtain a quotation and send them a Dividing Fences notice. They have the option to respond, but if they don't, you may go ahead and organise for the fence construction and your neighbour will have to meet their share of the cost. If there is a genuine dispute, you may try to settle it through a Community Justice Centre or, failing that, take the matter to the Local Court.
Most disputes over fences are about the style of fence. One homeowner may want a brush fence while the other may prefer a less expensive paling fence. If such a dispute goes to Court, the Court will look at the standard style of fencing for the area.
The most common mistake made over fences is where one homeowner goes ahead and gets work done without consulting their neighbour, and then serves them the notice to pay, believing that their neighbour has an overwhelming obligation to pay. The answer is: Always talk to your neighbour first and try to get agreement. And remember, if neither of you wants a dividing fence between your properties, then you don't have to have one!
The best way of avoiding unneccessary problems with your neighbour is through good communication. It is suggested that a well drafted letter to your neighbour stating your intentions is the best way to avoid neighbour disputes, even if you are not asking for payment towards the work! This should be backed up by another letter including quotes obtained by fencing contractors. Thirdly, a completion letter requesting payment for their portion of the work is required upon completion. Legal letters drafted especially for you to send to your neighbours (only $4.95), ...details. Just cut and past the required letters to your computer and send as needed.
Below is a list of websites that can provide information and resolution services.
Local council set the laws by which fences are to comply, usually detailed in the Local 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 local area council inspector
to see if any particular laws may apply in your situation.
In general, you are allowed to replace a fence 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 a new fence if it was
similar to the surrounding existing fences, but a check with the local council is advised.
If the fence you require is a dividing fence 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 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 view your local government website links below,
This depends on when your pool was built. If your pool was built before 1 August 1990 then you do not have to have a swimming pool fence as such, but the pool MUST be isolated from access from the street or from adjoining properties. The pool does not have to be separated from any residential building on the land provided the means of access from the building to the pool is restricted at all times. If your pool was built after 1 August 1990, then you are required to have a child resistant pool fence that complies with Australian Standard 1926-1986 “Fences and Gates for Swimming Pools”. You should contact your council for further information on these standards.
Local councils control the guidelines and consent for swimming pool fencing. Various materials and designs must comply with council requirements on safety.
Generally, pool fencing and gates must be at least 1.2m high from the outside ground level, and can contain no foot holds. Gates must be fitted including approved child safety catches.
For more information refer to the following guides:
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