Dividing Fences Act 1991

This Act may be cited as the Dividing Fences Act 1991.

This Act commences on a day or days to be appointed by proclamation.

In this Act:

adjoining owners means the owners of land on either side of a common boundary.

dividing fence means a fence separating the land of adjoining owners, whether on the common boundary of adjoining lands or on a line other than the common boundary.

fence means a structure, ditch or embankment, or a hedge or similar vegetative barrier, enclosing or bounding land, whether or not continuous or extending along the whole of the boundary separating the land of adjoining owners, and includes:

any gate, cattlegrid or apparatus necessary for the operation of the fence, and

any natural or artificial watercourse which separates the land of adjoining owners, and

any foundation or support necessary for the support and maintenance of the fence,

but does not include a retaining wall (except as provided by paragraph (c)) or a wall which is part of a house, garage or other building.

fencing work means:

the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and

the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose,

and includes:

the planting, replanting and maintenance of a hedge or similar vegetative barrier, and

the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence.

lease includes a sublease and an agreement for a lease.

owner includes:

any person who jointly or severally (whether at law or in equity) is entitled to land for any estate of freehold in possession or who receives or is entitled to receive any rents and profits of the land, whether as beneficial owner, trustee, mortgagee in possession or otherwise, and

any person who is the holder of a lease (the unexpired term of which is not less than 5 years) when a notice to carry out fencing work in accordance with this Act is given by, or served on, that person, and

any Crown land manager of Crown managed land (within the meaning of the Crown Land Management Act 2016).

In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following:

the existing dividing fence (if any),

the purposes for which the adjoining lands are used or intended to be used,

the privacy or other concerns of the adjoining land owners,

the kind of dividing fence usual in the locality,

any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated,

any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated,

in the case of a dividing fence affecting land the subject of a lease under the Western Lands Act 1901, any order in force under section 18A of that Act immediately before the repeal of that Act.

The intervention of a road or watercourse between 2 parcels of land does not prevent:

the owners of those parcels of land from being taken to be adjoining owners for the purposes of this Act, or

a claim for contribution for fencing work being brought in respect of a fence on either side of the road or watercourse.

This section applies only if the fence has been used or, in the opinion of the Local Court or the Civil and Administrative Tribunal could reasonably be used, as a dividing fence by the owners of the land on either side of it.

An adjoining owner is liable, in respect of adjoining lands where there is no sufficient dividing fence, to contribute to the carrying out of fencing work that results or would result in the provision of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

This section applies whether or not a dividing fence already separates the adjoining lands.

Adjoining owners are liable to contribute in equal proportions to the carrying out of fencing work in respect of a dividing fence of a standard not greater than the standard for a sufficient dividing fence.

An adjoining owner who desires to carry out fencing work involving a dividing fence of a standard greater than the standard for a sufficient dividing fence is liable for the fencing work to the extent to which it exceeds the standard for a sufficient dividing fence.

An adjoining owner who desires to carry out the trimming, lopping or removal of vegetation (as referred to in paragraph (b) of the definition of fencing work in section 3) for a purpose other than the provision of a sufficient dividing fence is liable for the expenses of carrying out the work to the extent to which those expenses are attributable to work done for that other purpose.

Despite section 7, an adjoining owner is liable for up to the whole cost of the fencing work required to restore a dividing fence that has been damaged or destroyed by a negligent or deliberate act of the owner or of a person who has entered the land concerned with the express or implied consent of the owner.

Any such dividing fence is to be restored to a reasonable standard, having regard to its state before the damage or destruction.

In determining an adjoining owner’s liability under this section, it does not matter if the negligent or deliberate act concerned took place before the commencement of this section.

This section applies to a dividing fence that has been damaged or destroyed (in whole or in part) and in the circumstances requires urgent fencing work.

If it is impracticable to serve a notice under section 11 in respect of a dividing fence to which this section applies, an adjoining owner may, without serving such a notice, carry out the urgent fencing work required to restore the dividing fence.

The other adjoining owner is liable for half the cost (or a greater proportion if section 8 applies) of the urgent fencing work.

Any such liability may be reviewed by the Local Court or the Civil and Administrative Tribunal on the application by that owner to the Court or the Tribunal within 1 month after the work has been completed (or within such later period as the Court or the Tribunal may allow).

No obligation to perform fencing work arises or is taken to arise by prescription or implication under the common law.

An adjoining owner may require the other adjoining owner to contribute, under this Act, to the carrying out of fencing work by serving a notice in writing to that effect on the other owner.

The notice is to specify the following:

the boundary line on which the fencing work is proposed to be carried out or, if it is impracticable to carry out fencing work on the common boundary of the adjoining lands, the line on which it is proposed to carry out the work,

the type of fencing work proposed to be carried out,

the estimated cost of the fencing work.

The owner serving the notice may propose that the cost of the fencing work is to be borne otherwise than in equal proportions. In such a case, the notice is to state the proposed proportions.

The description of land in a notice need not particularly define the land if it allows no reasonable doubt as to what land is referred to in the notice.

An adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence:

carried out before a notice under this section is served on the adjoining owner (unless section 9 applies or the notice is served in accordance with section 22), or

carried out after the service of the notice on the adjoining owner and before agreement is reached by the adjoining owners concerning the fencing work (including the contributions to be made in respect of the work) or before the matter has been determined by the Local Court or the Civil and Administrative Tribunal.

Adjoining owners may attend a Community Justice Centre in an attempt to reach an agreement concerning the carrying out of fencing work (including the contributions to be made in respect of the work).

If adjoining owners do not agree (within 1 month after one of them has served a notice under section 11) as to the fencing work to be carried out, either owner may apply to the Local Court or the Civil and Administrative Tribunal for an order determining the manner in which the fencing work (if any) is to be carried out.