by John Bottoms. [The Dividing Fences Act has since been replaced by the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.]

A fruitful source of dispute between neighbours arises out of boundary fences. These are called dividing fences and are the fences on the boundary of your land between your property and your next door neighbour’s property. It is amazing how heated these matters can become.

The usual disputes arise out of:

  • You requiring your neighbour to contribute to a new fence in a newly established neighbourhood.
  • Replacement fences for old fences which have fallen down or fallen into disrepair.
  • Disputes about what kind of fence and what standard of fence should be erected.
  • Disputes about where the fence should go.

The State Government legislation which covers these issues is presently being revised but until that happens I invite you to lighten your evenings if you have this problem, or another problem arising out of dividing fences, by reading the Dividing Fences Act.

In short compass the provisions of the Act deal with:

  • The liability of owners of adjoining land to fence.
  • How to give a “notice to fence” and if your neighbour will not comply with the notice, how to make an application to the court for an order.
  • If you reach agreement with your neighbour on fencing, what to do if they break the agreement.
  • What to do if you can’t find the owner.
  • What to do if you don’t agree on the boundary with your neighbour.
  • Liability of adjoining owners to repair.
  • How to compel a contribution if your neighbour will not contribute.
  • How the court may determine the kind of fence to be constructed or repaired.

All that sounds reasonably straight forward but I have to tell you when you apply it to people and to different circumstances it somehow becomes complicated. That is probably because people are complicated.

Many years ago a client of the Northern Beaches seeking privacy called upon his neighbour under the Act to contribute to a dividing fence. Agreement could not be reached as to the standard of the fence. One party wanted something very basic and inexpensive and the other something much more in keeping with the standard of his home.

Reasonable discussions over a few beers were unsuccessful and my client finished up erecting a 6 foot besser block fence just inside the boundary on his land which he painted dark brown. He very cleverly waited until the neighbour was away on holidays over Christmas for a few weeks before erecting the “great wall of China”.

I hasten to add, he did all this without talking to me – I only got involved when his neighbour returned from holidays and discovered my client’s new erection.

The exchange of angry words very quickly turned into something else far more unfortunate. It was lawyers at 20 paces. Both parties headed off to their friendly local family solicitor once the police had pulled them apart and given them both a stern warning to stop assaulting each other.

I was soon in possession of an angry letter from the opposing lawyers threatening an action for nuisance as the “great wall” was allegedly cutting out all sunlight in the neighbours back rumpus room and was casting shade where it should not be cast. There were also strong hints that the fence was defective in terms of its construction and did not meet with Council’s regulations.

Although my thoughtful client had very considerately constructed the fence on his own land (which lead him to believe that he could do what he liked) that is not actually what the Dividing Fences Act provides. This created more room for argument. Moreover, it does not get you out of complying with Council Building Regulations.

The question of the height of the fence and its construction standards raised issues for my client. The neighbour wanted the fence knocked down – my client was equally adamant it should stay.

By this time I thought it was a good idea it should stay, if only to keep the warring parties apart.

And if that was not bad enough, my client was anxious to have his next door neighbour to contribute to the cost of the “Berlin wall” – something that the neighbour was not minded to do at all.

Once both indignant parties had worked out the cost of actually having a legal case about the matter, they finally settled on the above compromise. The offending next door neighbour came around to the conclusion that the Berlin wall was a good idea because he would not have to look at my client – and since my client had insisted on building it on his own land, the compromise was the neighbour would put up with it if he did not have to contribute towards it.

The moral of the story is that you do have to contribute to a dividing fence, but that like all things you have to be reasonable and sensible about it. Please get a formal quote from a fencing contractor who will show you what is the usual standard adopted. It is also important that you take it over to your neighbour and chat to them about the proposal, rather than simply sending the bill as a rude surprise in the mail. Consider how you would react if someone sent an unexpected $2,000 or $3,000 bill in the mail to you – no matter how justified.