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The Dividing Fences Act 1991 sets out rules regarding how the cost of a dividing fence is to be shared between land owners and the types and specifications of a dividing fence. The Act also sets out a procedure for resolving disputes arising from fencing issues between land owners. A dividing fence is a fence that separates the land owned by adjoining owners and includes, a structure of any material, an embankment or hedge, but does not include a retaining wall or a wall forming part of a building.

If a land owner wants an adjoining owner to share in the cost of a dividing fence, that owner must serve a ‘fencing notice’ on the adjoining owner, either personally or by post, before any fencing work can be undertaken. The notice must include details of the boundary line on which the fence is to be erected, the type of fencing proposed and the estimated costs of the fencing work. If it is proposed that the cost of the fence is to be shared otherwise than in equal proportions, the notice must state the intended proportions.

An adjoining owner is not liable to contribute to the costs of the dividing fence if:

• any work is carried out before a notice is served on them, or 
• any work is carried out after service of a notice but before an agreement is reached between the parties or an order is made by a Local Court. 
• Notice is not required to be served in the case of urgent fencing work, if a fence has been destroyed or damaged. Fencing work may be urgent if there are safety or security reasons or the fence is required to prevent stock loss. In those circumstances, adjoining owners must equally share the costs of the urgent work. If a dividing fence is damaged by a land owner or someone on the land owner’s land, that owner is liable for up to the full costs of repairing or replacing the fence.

Under the Act, the costs which must be shared between adjoining land owners for fencing work includes all related work, such as preparation of the land, design, construction, replacement, repair and maintenance of the fence. The costs to be shared are for fences that are deemed to be ‘sufficient dividing fences’. Generally a sufficient dividing fence includes a paling fence in residential areas and a wire fence with star posts in rural areas.

In the event one owner wants a fence of a higher standard than a sufficient dividing fence, then the owner wanting the higher standard fence is liable for the difference in the costs between the sufficient fence and the higher standard fence. If a dispute about the standard of fencing arises, and Court action is taken, the Court will consider the following factors the standard of any existing fence, the use of the land on either side of the fence, privacy concerns of either owner, the usual fence in the surrounding area and any Council requirements.

If you would like any further information on fencing issues or any property related matter please contact Rebecca Flynn or email rebecca@wmdlaw.com.au

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