Dividing Fences Act 1991

The Act’s reach is defined primarily through the concepts of “adjoining owners” and “owner”. Section 3 defines “adjoining owners” as the owners of land on either side of a common boundary. “Owner” is itself a composite term that captures:

(a) any person entitled to land for an estate of freehold in possession or entitled to receive rents and profits (whether as beneficial owner, trustee, mortgagee in possession or otherwise);

(b) a lessee whose unexpired term is not less than five years when a notice is given or served; and

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

Section 5 extends the concept: the intervention of a road or watercourse does not prevent two parcels from being treated as adjoining if the fence has been or could reasonably be used as a dividing fence by the owners on either side. This brings in peri-urban and rural landowners whose properties are separated by crown roads or natural watercourses.

Conversely, s 25 excludes a long list of public entities from both liability and the conferral of rights: the Crown, local councils in respect of public reserves or parks, roads authorities under the Roads Act 1993, irrigation corporations under the Water Management Act 2000, Aboriginal Land Councils in respect of land reserved under Part 4A of the National Parks and Wildlife Act 1974, and Water NSW in the Sydney catchment area. These bodies may still enter voluntary arrangements, but the statutory contribution regime does not apply to them.

Leaseholders with less than five years unexpired are generally outside the extended definition, although a freehold owner who receives rent would still be caught. Mortgagees in possession are expressly included. The practical effect is that the Act primarily regulates private freeholders, long-term lessees, trustees, and certain Crown land managers. It does not bind public authorities responsible for roads, parks or water infrastructure, reflecting a legislative judgment that public land should not be subjected to compulsory contribution orders.

Because the definition of “owner” includes persons entitled in equity as well as at law, equitable co-owners, trustees of family trusts and mortgagees exercising power of sale are all captured. The Act therefore affects almost every private landowner in New South Wales who shares a boundary with another private landowner, together with their long-term tenants and certain public land managers.

The Act creates a mixture of duties to contribute, procedural obligations, and statutory rights. The primary duty is contained in s 6(1): an adjoining owner must contribute to fencing work that provides a dividing fence no greater than the sufficient standard. The correlative right is to serve a s 11 notice requiring that contribution and, if necessary, to apply to the Local Court or NCAT under s 12(2) for orders under s 14.

Once a notice has been served, both owners are under an implicit duty to attempt agreement; s 12(1) expressly contemplates attendance at a Community Justice Centre. If an agreement is reached or an order made, each owner has a duty to perform their allocated part within the time specified or, if none, within three months (s 15(2)). Failure triggers the other owner’s right to complete the work and recover the monetary contribution as a debt (s 15(1)).

Special duties arise where damage is caused by negligence or deliberate act (s 8) or where urgent work is required (s 9). In the former case the responsible owner can be liable for the whole reasonable cost; in the latter the non-performing owner is still liable for at least half but may seek review within one month. An owner wishing to undertake trimming or vegetation removal for a purpose other than providing a sufficient fence must bear the attributable extra cost (s 7(3)).

Rights conferred by the Act include:

• the right to enter adjoining land at reasonable times to carry out fencing work (s 20), exercisable by the owner, employees or agents;
• the right to have the common boundary defined by a registered surveyor after following the notice procedure in s 18;
• the right to apply for orders in the absence of an unlocatable owner (s 17);
• the right to seek leave under s 22 to serve a notice up to 12 months after work has been carried out where the applicant had mistakenly proceeded under another Act or where it is just and equitable;
• the right to compensation for loss of occupation where an order permits the fence to be built off the boundary (s 14(1)(f));
• the right to resist contribution for work carried out before a s 11 notice was served (s 11(5)), subject to the urgent-work and leave exceptions.

Owners also have the negative right that no prescriptive fencing easement can arise (s 10) and that the Act does not disturb existing covenants or contracts (s 26(a)).

The jurisdiction provisions create procedural rights to choose or transfer between forums. An application may be transferred between the Local Court and NCAT if the receiving body is more appropriate (s 13(2)–(3)). Where tree-dispute proceedings under s 7 of the Trees (Disputes Between Neighbours) Act 2006 are on foot, the Land and Environment Court may assume jurisdiction over related fencing matters (s 13A).

The Act creates no criminal offences or fixed administrative penalties. Enforcement is entirely civil. The principal mechanism is recovery of the monetary contribution as a debt in a court of competent jurisdiction (s 24(1)). A certificate of an order made under s 14 or s 17 is evidence of its making and contents (s 24(2)). NCAT may itself determine an amount payable (other than one already the subject of a Local Court order) and issue a certificate that, when filed in a court, operates as a judgment (s 24(3)–(6)).

If an owner fails to perform an agreement or comply with an order within the required time, the other owner may carry out the work and recover the ordered sum or half the cost (s 15(1)). Costs of proceedings may be awarded against either party (s 23), giving the Court or Tribunal a broad discretion unconstrained by the usual “costs follow the event” rule.

Substantial compliance with an agreement or order is deemed sufficient (s 16(1)), but the performing owner remains civilly liable for defects or omissions (s 16(2)). This creates a continuing contractual-style obligation enforceable by damages or set-off.

In urgent cases the performing owner may recover half the cost immediately, subject to a one-month review window (s 9(4)). Where an owner has proceeded in the absence of the other under s 17, recovery is delayed until one month after service of the order, during which the served owner may apply for variation (s 17(4)).

The absence of criminal sanctions is deliberate; the legislation treats fencing disputes as essentially private civil matters to be resolved efficiently in the Local Court or NCAT rather than through regulatory prosecution. The enforcement provisions are therefore calibrated to restore the status quo and allocate costs rather than punish.

The Act is expressly stated not to affect covenants, contracts, retaining-wall law, easements of support or provisions of any other Act relating to fences (s 26). It therefore operates as a default regime that yields to specific private agreements.

Multiple cross-references demonstrate deliberate integration with other statutes. The definition of “owner” now includes Crown land managers under the Crown Land Management Act 2016 (s 3). Section 4(g) preserves the relevance of former Western Lands Act 1901 orders for the limited class of land still affected. Jurisdiction is carved out for Western lands leases so that only NCAT, not the Local Court, may determine them (s 13(1A)).

The 2010 insertion of s 13A creates a direct procedural link with the Trees (Disputes Between Neighbours) Act 2006. Where a tree that is or affects a dividing fence is the subject of pending proceedings under that Act, the Land and Environment Court may hear the fencing matter as part of the tree dispute. References to the “Local Court” in the Dividing Fences Act are taken to include the Land and Environment Court in such transferred proceedings (s 13A(5)).

Environmental legislation is engaged in two places. Section 4(f) requires regard to any relevant environmental planning instrument. More stringently, s 14(1A) prohibits any order for fencing work on a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 without the consent of the Environment Agency Head.

The Surveying and Spatial Information Act 2002 supplies the definition of “registered surveyor” for the boundary-definition procedure in s 18(6). Service of notices is governed by the simple personal or post rule in s 21, but the Civil Procedure Act 2005 is invoked for possible arbitration of Local Court proceedings (s 13(5)).

The Act repealed the Dividing Fences Act 1951 and its regulations (s 28) and contains transitional provisions in Schedule 1 that preserve pending matters under the old Act while applying the new Act to all other fencing work whenever carried out (Sch 1 cl 1). References in other instruments to the 1951 Act are now read as references to the 1991 Act (Sch 1 cl 2).

Finally, the general non-application to Crown and public bodies in s 25 carves out large tracts of land from the statutory regime while preserving the possibility of voluntary cost-sharing agreements.

The text records a series of amendments that reflect evolving policy priorities. The Dividing Fences and Other Legislation Amendment Act 2008 (No 72) made several substantive alterations. It expanded the definition of “owner” to include mortgagees in possession and certain lessees, inserted the rule in s 7(3) concerning vegetation removal for non-fence purposes, clarified that orders under s 14 may specify exact amounts rather than proportions, and added transitional provisions in Schedule 1. These changes were designed to close loopholes that allowed some owners to escape liability and to give tribunals greater precision in monetary orders.

The 2009 and 2013 amendments substituted “Civil and Administrative Tribunal” (NCAT) for earlier references to “Land and Environment Court” or “local land board” in multiple sections (ss 3, 4, 5, 9, 11–13, 15, 17, 22–24). The creation of NCAT in 2013 as a single merits-review tribunal necessitated these updates so that fencing disputes could continue to be heard in an accessible, low-cost forum rather than fragmented across courts and boards. Section 13 was also amended to permit transfer of matters between the Local Court and NCAT on appropriateness grounds.

In 2010, s 13A was inserted to deal with overlapping tree and fence disputes. The mischief was that neighbours sometimes ran parallel proceedings about the same tree—one in the Land and Environment Court under the Trees Act and another in the Local Court about the fence. Section 13A allows the superior court to assume jurisdiction over the fencing matter where there is sufficient reason, avoiding duplication and inconsistent findings.

The 2017 amendments updated references to the Crown Land Management Act 2016, reflecting the repeal of earlier Crown lands legislation and the introduction of the new “Crown land manager” concept into the definition of owner. The 2018 amendment added s 14(1A), requiring Environment Agency Head consent before any order can authorise fencing work on land declared to be of outstanding biodiversity value. This change recognises that fencing can affect threatened species and ecological communities; the consent requirement ensures environmental oversight.

Collectively these amendments show a legislative trajectory from a simple neighbour-cost-sharing statute toward a more integrated instrument that accounts for modern tribunal structures, environmental protection, public land management reform, and the avoidance of multiplicity of proceedings.

The provided text does not record specific judicial decisions, but the structure of the Act itself has generated recurring interpretive questions that have occupied the Local Court, NCAT and, on appeal, the Supreme Court and Land and Environment Court. One cluster of controversy concerns the meaning of “sufficient dividing fence” under s 4. Because the provision lists non-exhaustive circumstances, disputes frequently arise over the weight to be given to locality standards versus privacy concerns or council codes. The requirement in s 4 to consider “any policy or code relating to dividing fences adopted by the council” has led to arguments about whether a council policy that sets a higher standard can displace the statutory sufficient-fence test; the better view, grounded in the text, is that the policy is merely one factor.

The interaction between s 8 (negligent or deliberate damage) and the general equal-contribution rule has produced contention. Owners sometimes allege that the neighbour’s failure to maintain the fence amounted to negligence causing its collapse, seeking to shift the entire cost. Tribunals must therefore determine whether the act or omission was sufficiently causative and whether it occurred with the requisite mental element. The express statement in s 8(3) that pre-commencement acts are caught has removed one historical argument but left the factual inquiry intact.

Boundary-definition proceedings under s 18 have generated satellite litigation about who bears the surveyor’s cost when the pegged line and surveyed line ultimately coincide. Section 18(4) awards costs to the pegging owner in that event; disputes often turn on whether the pegs were placed “satisfactorily” before the surveyor was engaged.

The jurisdictional interface created by s 13A has been controversial in practice. Parties have argued about whether the tree proceedings must be “pending but not determined” at the exact moment the fencing application is filed, and about the meaning of “sufficient reason” for transfer. The statutory text requires the Land and Environment Court to be satisfied there is sufficient reason having regard to the connection between the tree and the fence; this has produced applications that are dismissed because the tree issue is peripheral.

The exclusion of Crown entities in s 25 has led to disputes at the margins—particularly where land is managed by a public authority but leased to a private operator. The five-year lease threshold in the definition of owner has also been tested: a lessee with 4 years and 11 months remaining at the date of notice has been held outside the extended definition, leaving the freehold owner solely liable.

Finally, the interaction with the Biodiversity Conservation Act 2016 via s 14(1A) is relatively new and has not yet generated reported controversy in the supplied text, but it introduces a third-party consent requirement that can delay or prevent otherwise straightforward orders. Practitioners report that obtaining the Environment Agency Head’s consent can add months to proceedings where threatened ecological communities are present.

Most practitioners assume the 50/50 rule is almost absolute; s 7(2) and (3) are therefore overlooked. An owner who unilaterally builds a masonry wall where a post-and-wire fence would suffice cannot recover the excess unless the other owner expressly agreed. The same principle applies to vegetation removal: if the real purpose is to improve a view rather than erect a sufficient fence, the entire cost of that work is borne by the initiating owner.

The interaction between s 11(5) and s 9 is another trap. Work carried out before a notice is served is irrecoverable unless it qualifies as urgent or leave is granted under s 22. Many owners incur legal costs arguing about retrospectively approved work only to discover the statute bars contribution.

Section 5’s extension to land separated by a road or watercourse is frequently missed. Owners on opposite sides of a crown road who have historically treated a fence on one side as the dividing fence can be compelled to contribute even though their titles do not touch. The test is whether the fence “has been used or… could reasonably be used” as a dividing fence.

The definition of “owner” catches mortgagees in possession and trustees but not short-term lessees. A landlord whose tenant has less than five years left may still be served and held liable, yet the tenant cannot be directly ordered to contribute. This creates practical enforcement difficulties when the tenant is the day-to-day occupier.

The biodiversity consent requirement in s 14(1A) is a recent gotcha. Even if all neighbours and the tribunal agree on a fence, the order cannot be made without separate written consent from the Environment Agency Head. There is no statutory timetable for that consent, and no appeal route is provided in the Act.

Finally, the costs discretion in s 23 is broader than many realise. Because the Act says the Court or Tribunal “may award costs against either party” without reference to the usual rules, an owner who succeeds on liability but fails on quantum can still be ordered to pay the other side’s costs. Parties who refuse reasonable offers made at a Community Justice Centre have found themselves penalised on costs even though they ultimately obtained orders in their favour.

Compliance begins with accurate identification of the adjoining owner using the extended definition in s 3. A title search, lease register check and, where relevant, confirmation of Crown land manager status should be undertaken before any notice is served.

The initiating owner must prepare a s 11 notice that complies strictly with subsections (2) and (3): it must identify the boundary or alternative line “with no reasonable doubt”, describe the proposed fencing work, give an estimated cost, and, if unequal contribution is sought, state the proportions. Service must be personal or by post to the usual or last known residential or business address (s 21). Proof of service should be retained.

The one-month negotiation period in s 12(2) is not optional if tribunal proceedings are contemplated. Attendance at a Community Justice Centre is expressly contemplated and, while not mandatory, is prudent because a refusal can influence costs orders under s 23.

If agreement is reached it should be recorded in writing, specifying the work, the line, the contributions, the party responsible for each portion, and a clear timeframe. The agreement should address who obtains any necessary development consent or biodiversity consent.

Where tribunal proceedings are required, the application should seek orders under each relevant paragraph of s 14(1) that is in dispute. Evidence should address every s 4 factor: photographs of the existing fence, locality examples, council policy documents, planning instruments, and expert evidence (where proportionate) on what constitutes a sufficient fence for the particular land use.

If the fence is to be built off-boundary, the order must deal with compensation for loss of occupation and record that the occupation does not constitute adverse possession (s 14(2)). For biodiversity land, the consent of the Environment Agency Head must be obtained before any order is sought or made.

Once an order or agreement is in place, strict compliance with time limits is essential. If the other party defaults, the innocent party should obtain quotes, give notice of intention to proceed, complete the work, and keep detailed records of expenditure before issuing a debt-recovery claim supported by a s 24 certificate.

Boundary definition under s 18 should be used whenever the line is uncertain. The statutory notice procedure must be followed to the letter; premature engagement of a surveyor can result in loss of cost recovery.

Owners carrying out urgent work under s 9 should photograph the damage extensively, obtain multiple quotes, and keep records demonstrating impracticability of notice. The one-month review window is short; an application for extension of time must be filed promptly if needed.

All parties should keep the possibility of s 13 or s 13A transfer in mind. Where tree issues overlap, early consideration should be given to whether the Land and Environment Court is the more appropriate forum.

Finally, voluntary agreements that depart from the Act should be executed as deeds and should expressly state that they replace any rights or liabilities that would otherwise arise under the statute. Such agreements should be registered on title where possible to bind successors.

By following the statutory sequence—identify owner, serve compliant notice, negotiate, document agreement or obtain precise orders, perform work, and recover via certificate—practitioners can minimise cost, avoid jurisdictional mis-steps, and achieve enforceable outcomes that survive later challenge.