The Act creates a statutory framework for who must build, repair, maintain and pay for dividing fences, how disputes are notified and decided, and how costs and enforcement operate. It applies to adjoining owners (including long‑term lessees and certain Crown land managers), defines dividing fences broadly, sets equal sharing as the default (with higher‑standard costs borne by the requester) and excludes specified public bodies. It matters because it standardises cost allocation, dispute procedure and incentives around fence standards and enforcement.
The Dividing Fences Act 1991 establishes a comprehensive statutory scheme for the allocation of responsibility and cost for fencing work between owners of adjoining land in New South Wales. At its core, the Act replaces earlier common-law notions of implied obligations with an explicit liability regime grounded in equal contribution for a “sufficient dividing fence” (s 6(1)). It defines the key concepts necessary to operate this regime in s 3: “adjoining owners” are the owners of land on either side of a common boundary; a “dividing fence” is any fence separating such land whether or not it sits precisely on the boundary; and “fence” itself is given an expansive meaning that includes gates, cattle grids, natural or artificial watercourses, foundations, and hedges, while expressly excluding retaining walls (except as supports) and walls that form part of a building.
“Fencing work” is likewise broadly defined to encompass design, construction, replacement, repair, maintenance, surveying, vegetation trimming, and the planting or maintenance of hedges or alteration of ditches and watercourses (s 3). The Act’s central operative provision, s 6, states that an adjoining owner is liable to contribute to fencing work that results in a dividing fence “of a standard not greater than the standard for a sufficient dividing fence”. Section 4 directs the Local Court or NCAT, when determining that standard, to consider a non-exhaustive list of circumstances: the existing fence (if any), the purposes for which the lands are used, privacy concerns, the kind of fence usual in the locality, council policies or codes, relevant environmental planning instruments, and (in limited transitional cases) orders under the former Western Lands Act 1901.
The liability rules are nuanced. Section 7(1) sets the default position of equal contribution. Section 7(2) provides that an owner who wants a higher standard must bear the incremental cost. Section 8 displaces the equal-share rule where the fence has been damaged or destroyed by a negligent or deliberate act of the other owner or someone entering with that owner’s consent; in such cases the responsible owner can be liable for the whole cost of restoration to a reasonable standard, regardless of when the act occurred. Urgent repairs are dealt with in s 9: where it is impracticable to serve a notice, one owner may proceed and the other remains liable for half (or more if s 8 applies), subject to later review by the Court or Tribunal within one month.
Current sections
Direct links to the current provisions in Dividing Fences Act 1991.
This Act commences on a day or days to be appointed by proclamation.
3
Definitions
3 Definitions
3 Definitions
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:
(a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and
(b) any natural or artificial watercourse which separates the land of adjoining owners, and
(c) 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:
(a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and
(b) 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:
(c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and
(d) 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:
(a) 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
(b) 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
s 3: Am 2008 No 72, Sch 1 [1] [2]; 2009 No 9, Sch 3.4 [1]; 2013 No 95, Sch 8.9 [1]; 2017 No 17, Sch 4.21 [1].
4
Determination as to “sufficient dividing fence”
4 Determination as to “sufficient dividing fence”
4 Determination as to “sufficient dividing fence”
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:
(a) the existing dividing fence (if any),
(b) the purposes for which the adjoining lands are used or intended to be used,
(c) the privacy or other concerns of the adjoining land owners,
(d) the kind of dividing fence usual in the locality,
(e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated,
(f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated,
(g) 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.
s 4: Am 2007 No 94, Sch 1.31 [1]; 2009 No 9, Sch 3.4 [2]; 2013 No 95, Sch 8.9 [2]; 2017 No 17, Sch 4.21 [2].
5
Adjoining owners—land separated by road or watercourse
5 Adjoining owners—land separated by road or watercourse
5 Adjoining owners—land separated by road or watercourse
(1) The intervention of a road or watercourse between 2 parcels of land does not prevent:
(a) the owners of those parcels of land from being taken to be adjoining owners for the purposes of this Act, or
(b) a claim for contribution for fencing work being brought in respect of a fence on either side of the road or watercourse.
(2) 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.
s 5: Am 2007 No 94, Sch 1.31 [1]; 2013 No 95, Sch 8.9 [3].
Part 2
Liability for fencing work
Part 2 Liability for fencing work
Part 2 Liability for fencing work
6
General principle—liability for fencing work
6 General principle—liability for fencing work
6 General principle—liability for fencing work
(1) 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.
(2) This section applies whether or not a dividing fence already separates the adjoining lands.
7
Contribution as between adjoining owners—generally
7 Contribution as between adjoining owners—generally
7 Contribution as between adjoining owners—generally
(1) 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.
(2) 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.
(3) 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.
s 7: Am 2008 No 72, Sch 1 [3].
8
Contribution where negligent or deliberate act
8 Contribution where negligent or deliberate act
8 Contribution where negligent or deliberate act
(1) 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.
(2) Any such dividing fence is to be restored to a reasonable standard, having regard to its state before the damage or destruction.
(3) 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.
9
Contribution when urgent fencing work is required
9 Contribution when urgent fencing work is required
9 Contribution when urgent fencing work is required
(1) 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.
(2) 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.
(3) The other adjoining owner is liable for half the cost (or a greater proportion if section 8 applies) of the urgent fencing work.
(4) 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).
s 9: Am 2007 No 94, Sch 1.31 [1]; 2013 No 95, Sch 8.9 [4].
10
Fencing easements etc extinguished
10 Fencing easements etc extinguished
10 Fencing easements etc extinguished
No obligation to perform fencing work arises or is taken to arise by prescription or implication under the common law.
Part 3
Procedure and implementation
Part 3 Procedure and implementation
Part 3 Procedure and implementation
11
Notice to carry out fencing work
11 Notice to carry out fencing work
11 Notice to carry out fencing work
(1) 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.
(2) The notice is to specify the following:
(a) 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,
(b) the type of fencing work proposed to be carried out,
(c) the estimated cost of the fencing work.
(3) 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.
(4) 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.
(5) An adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence:
(a) 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
(b) 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.
s 11: Am 2007 No 94, Sch 1.31 [1]; 2013 No 95, Sch 8.9 [5].
12
Procedure when agreement not reached
12 Procedure when agreement not reached
12 Procedure when agreement not reached
(1) 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).
(2) 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.
s 12: Am 2007 No 94, Sch 2; 2013 No 95, Sch 8.9 [6].
13
Jurisdiction of Local Court or Civil and Administrative Tribunal
13 Jurisdiction of Local Court or Civil and Administrative Tribunal
13 Jurisdiction of Local Court or Civil and Administrative Tribunal
(1) The Local Court or the Civil and Administrative Tribunal has jurisdiction to hear and determine any matter arising under this Act.
(1A) Despite subsection (1), only the Civil and Administrative Tribunal has jurisdiction to hear and determine matters affecting land the subject of a Western lands lease within the meaning of Schedule 3 to the Crown Land Management Act 2016.
(2) An application under this Act that is pending in the Local Court or in the Civil and Administrative Tribunal may be transferred from the Court to the Tribunal, or from the Tribunal to a Court, if it appears to the tribunal to which the application was made that, having regard to the subject-matter of the application and the composition and nature of the other tribunal, it is more appropriate for the application to be determined by that other tribunal.
(3) The Local Court or the Civil and Administrative Tribunal which has an application transferred to it under subsection (2) is to determine the application.
(4) (Repealed)
(5) The Local Court may refer the parties to proceedings under this Act to an arbitrator within the meaning of Part 5 of the Civil Procedure Act 2005, but only to the extent to which that Act provides for such proceedings to be so referred.
s 13: Am 1994 No 32, Sch 1; 2005 No 28, Sch 5.14; 2007 No 94, Schs 1.31 [1] [2], 2, 3; 2009 No 9, Sch 3.4 [3]; 2013 No 95, Sch 8.9 [7]–[9]; 2017 No 17, Sch 4.21 [3].
13A
Jurisdiction of Land and Environment Court
13A Jurisdiction of Land and Environment Court
13A Jurisdiction of Land and Environment Court
(1) The Land and Environment Court has jurisdiction to hear and determine matters arising under this Act in proceedings to which this section applies.
(2) This section only applies if:
(a) application for the exercise of the jurisdiction is made in relation to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced but not determined, and
(b) the tree that is the subject of those proceedings:
(i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or
(ii) is part of a dividing fence and has caused, is causing, or is likely in the near future to cause damage to the applicant’s property or is likely to cause injury to any person.
(3) The Land and Environment Court may, of its own motion or on an application by a party to an application under this Act that is before the Local Court or the Civil and Administrative Tribunal, transfer the application that is pending in the Local Court or in the Civil and Administrative Tribunal to the Land and Environment Court if:
(a) the application is relevant to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced in the Land and Environment Court but have not been determined, and
(b) the tree that is the subject of those proceedings:
(i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or
(ii) is part of a dividing fence and has caused, is causing, or is likely in the near future to cause damage to the applicant’s property or is likely to cause injury to any person, and
(c) the Land and Environment Court is satisfied that there is sufficient reason for the application under this Act to be heard and determined by the Land and Environment Court.
(4) An application that is transferred to the Land and Environment Court under subsection (3) is to be continued in the Land and Environment Court and determined by the Land and Environment Court as part of the related proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006.
(5) For the purposes of any proceedings to which this section applies, a reference to the Local Court in this Act (except sections 13 (2), (3) and (4) and 19 (2) and (3)) is taken to include a reference to the Land and Environment Court.
s 13A: Ins 2010 No 27, Sch 2.1. Am 2013 No 95, Sch 8.9 [10].
14
Orders as to fencing work
14 Orders as to fencing work
14 Orders as to fencing work
(1) The Local Court or the Civil and Administrative Tribunal may, in respect of an application under this Act, make an order determining any one or more of the following:
(a) the boundary or line on which the fencing work is to be carried out, whether or not that boundary or line is on the common boundary of the adjoining lands,
(b) the fencing work to be carried out (including the kind of dividing fence involved),
(c) the manner in which contributions for the fencing work are to be apportioned or re-apportioned or the amount that each adjoining owner is liable to pay for that work,
(d) which portion of the dividing fence is to be constructed or repaired by either owner,
(e) the time within which the fencing work is to be carried out,
(f) the amount of any compensation (in the form of an annual payment to either of the adjoining owners) in consideration of loss of occupation of any land,
(g) that, in the circumstances, no dividing fence is required in respect of all or part of the boundary of the adjoining lands.
(1A) Despite subsection (1), no order may be made for the carrying out of fencing work on a declared area of outstanding biodiversity value under the Biodiversity Conservation Act 2016 without the consent of the Environment Agency Head (within the meaning of that Act).
(2) The occupation of land on either side of a dividing fence, as a result of an order determining that fencing work is to be carried out otherwise than on the common boundary of the adjoining lands, is not taken to be adverse possession as against the owner or to affect the title to or possession of the land, except for the purposes of this Act.
s 14: Am 1995 No 101, Sch 6; 2007 No 94, Sch 1.31 [2]; 2008 No 72, Sch 1 [4]; 2013 No 95, Sch 8.9 [11]; 2018 No 25, Sch 3.5.
15
Enforcement of agreements and orders
15 Enforcement of agreements and orders
15 Enforcement of agreements and orders
(1) If an agreement is reached by adjoining owners or an order is made by the Local Court or the Civil and Administrative Tribunal and an adjoining owner bound by the agreement or order fails within the required time to perform his or her part of the agreement or to comply with the order, the other adjoining owner:
(a) may carry out the fencing work as agreed on or as determined by the order, and
(b) may recover from the defaulting adjoining owner the amount agreed or ordered to be paid by that adjoining owner or (if the agreement or order does not specify the amount to be paid) half the cost of the fencing work carried out.
(2) The required time is the time specified in the agreement or order or, if no time is specified, within 3 months after the making of the agreement or order.
s 15: Am 2007 No 94, Sch 1.31 [1]; 2013 No 95, Sch 8.9 [12].
16
Substantial compliance sufficient
16 Substantial compliance sufficient
16 Substantial compliance sufficient
(1) Substantial compliance with the terms of any agreement or order referred to in section 15 is sufficient for the purposes of this Act.
(2) However, the adjoining owner who carries out the fencing work is liable to the other adjoining owner for any defect or omission in the fencing work.
17
Application for order in absence of an adjoining owner
17 Application for order in absence of an adjoining owner
17 Application for order in absence of an adjoining owner
(1) An adjoining owner may apply to the Local Court or the Civil and Administrative Tribunal for an order, in the absence of the other adjoining owner, authorising the carrying out of such fencing work as is specified in the order (including the manner in which contributions for the work are to be apportioned).
(2) Such an order may only be made if the Court or the Tribunal is satisfied that the adjoining owner making the application has made reasonable inquiries but has been unable to ascertain the whereabouts of the other adjoining owner for the purposes of serving a notice under section 11.
(3) An adjoining owner who carries out the fencing work authorised by the order and who later ascertains the whereabouts of the other adjoining owner:
(a) may serve a copy of the order on the other owner, and
(b) is entitled, after 1 month from the date of service, to recover from the other owner the proportion of that owner’s contribution as specified in the order.
(4) The adjoining owner served with a copy of an order under subsection (3) may, within 1 month after being served, apply to the Local Court or the Civil and Administrative Tribunal for a variation of the order and the Court or the Tribunal may vary the order in such manner as it thinks fit.
s 17: Am 2007 No 94, Sch 1.31 [1]; 2013 No 95, Sch 8.9 [13] [14].
18
Procedure for defining boundary line
18 Procedure for defining boundary line
18 Procedure for defining boundary line
(1) An adjoining owner may give notice in writing to the other adjoining owner of his or her intention to have the common boundary line defined by a registered surveyor if the owners do not agree on the position of the common boundary line for the purposes of carrying out fencing work.
(2) The owner receiving the notice may, within 7 days after service of the notice:
(a) define the position of the common boundary line by pegs if satisfied as to its position, or
(b) employ a registered surveyor to define the common boundary line,
and in either case is to inform the other adjoining owner in writing of what has been done.
(3) The owner giving the notice may have the common boundary line defined by a registered surveyor if the owner to whom the notice is given has, within 1 month after service of the notice, defined the common boundary line by pegs or failed to have the common boundary defined by a registered surveyor.
(4) If the common boundary line as defined by a registered surveyor is ascertained to be in the same position defined by pegs placed there by the owner receiving the notice, that owner is entitled to recover from the owner giving the notice any costs incurred.
(5) In any other case when a registered surveyor has been employed, all reasonable expenses are to be paid in equal shares by the adjoining owners.
s 18: Am 2002 No 83, Sch 2.6; 2009 No 119, Sch 2.8.
19
19
19 (Repealed)
Part 4
Miscellaneous
Part 4 Miscellaneous
Part 4 Miscellaneous
20
Right to enter adjoining land
20 Right to enter adjoining land
20 Right to enter adjoining land
An adjoining owner who carries out fencing work under this Act (including the owner’s employees or agents) may, at any reasonable time, enter on the land adjoining the dividing fence for the purpose of carrying out the work.
21
Service of notices
21 Service of notices
21 Service of notices
A notice under this Act is to be served on an adjoining owner by delivering it personally or sending it by post to the owner’s usual or last known residential or business address.
22
Time for service of notices—special provision
22 Time for service of notices—special provision
22 Time for service of notices—special provision
(1) The Local Court or the Civil and Administrative Tribunal may grant leave to serve a notice demanding contribution under this Act on an adjoining owner from whom contribution is sought up to 12 months after the fencing work concerned has been carried out.
(2) Leave may be granted only if:
(a) the Court or the Tribunal is satisfied that the owner seeking to serve notice has mistakenly taken action in respect of the dividing fence under some other Act, or
(b) the Court or the Tribunal considers it to be just or equitable in the circumstances for leave to be granted.
s 22: Am 2007 No 94, Sch 1.31 [2]; 2013 No 95, Sch 8.9 [16] [17].
23
Costs
23 Costs
23 Costs
In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal may award costs against either party.
s 23: Am 2007 No 94, Sch 1.31 [1]; 2013 No 95, Sch 8.9 [18].
24
Recovery of money payable
24 Recovery of money payable
24 Recovery of money payable
(1) Any money which an adjoining owner is required or liable to pay under this Act may be recovered as a debt in a court of competent jurisdiction.
(2) In any proceedings for the recovery of money, the certificate of the Local Court or the Civil and Administrative Tribunal as to the making and contents of any order under section 14 or 17 is evidence of the matters set out in the certificate.
(3) The Tribunal may, on the application of an adjoining owner, make an order determining an amount that the other adjoining owner is required or liable to pay under this Act (other than an amount the subject of an order by the Local Court under this Act).
(4) The amount (including any costs awarded against the other adjoining owner under section 23) may be certified by the principal registrar of the Civil and Administrative Tribunal.
(5) A certificate given under subsection (4) must identify the person liable to pay the certified amount.
(6) If a certificate given under subsection (4) is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount stated in the certificate, the certificate operates as such a judgment.
s 24: Am 2008 No 72, Sch 1 [5]; 2013 No 95, Sch 8.9 [19]–[21].
25
Application of Act to Crown and local authorities etc
25 Application of Act to Crown and local authorities etc
25 Application of Act to Crown and local authorities etc
(1) This Act does not operate to impose any liability, or to confer any rights, with respect to dividing fences on:
(a) the Crown, or
(b) a council of a local government area, or any trustee or other person or body, in respect of land vested in (or under the care, control and management of) the council, trustee, person or body for the purposes of a public reserve, public park or such other public purposes as may be prescribed, or
(c) a roads authority (within the meaning of the Roads Act 1993) with respect to any public road, or
(f) Water NSW, but only with respect to the exercise of its functions in the Sydney catchment area (within the meaning of the Water NSW Act 2014).
(2) However, nothing in this Act prevents the Crown or any such council, trustee, person or body from entering into arrangements (other than those arising under this Act) to contribute to fencing work in respect of dividing fences.
(3) In this section, Crown includes a statutory body representing the Crown.
s 25: Am 1993 No 33, Sch 1; 1994 No 41, Sch 3; 2008 No 73, Sch 7.1; 2010 No 38, Sch 3.1; 2014 No 74, Sch 3.6.
26
Act not to affect agreements etc, retaining walls or other Acts
26 Act not to affect agreements etc, retaining walls or other Acts
26 Act not to affect agreements etc, retaining walls or other Acts
Nothing in this Act affects:
(a) any covenant or any contract or agreement (other than an agreement arising under this Act) made between adjoining owners in respect of a dividing fence before or after the commencement of this Act, or
(b) any law relating to retaining walls, easements of support or other rights of support in relation to land, or
(c) provisions relating to fences or fencing work made by or under any other Act.
s 26: Am 2008 No 72, Sch 1 [6].
27
Regulations
27 Regulations
27 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Schedule 2
Schedule 2
Schedule 2 (Repealed)
sch 2: Rep 1999 No 85, Sch 4.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act may be cited as the Dividing Fences Act 1991.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
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:
(a) any gate, cattlegrid or apparatus necessary for the operation of the fence, and
(b) any natural or artificial watercourse which separates the land of adjoining owners, and
(c) 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:
(a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and
(b) 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:
(c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and
(d) 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:
Procedural machinery occupies Part 3. An owner who wants contribution must serve a written notice under s 11 specifying the proposed boundary or line, the type of work, the estimated cost, and (if relevant) any proposed unequal apportionment. Until such notice is served, the other owner is generally not liable for work already carried out (s 11(5)), except in urgent cases or where leave is granted under s 22. If agreement is not reached within one month, either party may apply to the Local Court or NCAT (s 12(2)). The Tribunal or Court is given broad jurisdiction (s 13) to make orders on every practical aspect of the dispute: the line on which the fence is to be built (even if not the common boundary), the standard and kind of fence, apportionment of cost, who does which portion, timing, compensation for loss of occupation, or even that no fence is required (s 14(1)). Special rules govern applications in the absence of an owner whose whereabouts cannot be ascertained (s 17) and the definition of an uncertain boundary by registered surveyor (s 18).
Enforcement is facilitated by s 15, which permits the innocent party to complete the work and recover the agreed or ordered sum (or half the cost if no sum is specified) if the other party defaults. Substantial compliance with an agreement or order is sufficient (s 16), though the performing owner remains liable for defects. Recovery of money is as a debt, with certificates of orders operating as judgments (s 24). The Act extinguishes any prescriptive or implied common-law fencing easements (s 10) and makes clear that it does not affect existing contracts, retaining-wall law, or other statutory regimes (s 26). It also confers a statutory right of entry at reasonable times to carry out work (s 20).
The legislation therefore does three things simultaneously: it allocates substantive liability, prescribes a mandatory pre-litigation and litigation pathway, and limits its own operation so as to preserve private agreements and public-interest exemptions. Every provision is drafted to operate cumulatively; the definitions in s 3 feed into the liability rules in ss 6–9, which in turn inform the orders that may be made under s 14, which are then enforced via ss 15 and 24. The overall effect is a self-contained, practical code designed to minimise neighbour conflict while allocating costs according to objective criteria rather than historical accident.
Who it affects
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.
Key duties and rights
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).
Penalties and enforcement
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.
How it interacts with other laws
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.
Recent changes and why
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.
Court challenges and controversies
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.
Gotchas
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.
How to comply
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.
Adjoining owners—land separated by road or watercourse
(a) 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
(b) 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
(c) any Crown land manager of Crown managed land (within the meaning of the Crown Land Management Act 2016).
s 3: Am 2008 No 72, Sch 1 [1] [2]; 2009 No 9, Sch 3.4 [1]; 2013 No 95, Sch 8.9 [1]; 2017 No 17, Sch 4.21 [1].
4 Determination as to “sufficient dividing fence”
4 Determination as to “sufficient dividing fence”
4 Determination as to “sufficient dividing fence”
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:
(a) the existing dividing fence (if any),
(b) the purposes for which the adjoining lands are used or intended to be used,
(c) the privacy or other concerns of the adjoining land owners,
(d) the kind of dividing fence usual in the locality,
(e) any policy or code relating to dividing fences adopted by the council of the local government area in which the adjoining lands are situated,
(f) any relevant environmental planning instrument relating to the adjoining lands or to the locality in which they are situated,
(g) 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.
s 4: Am 2007 No 94, Sch 1.31 [1]; 2009 No 9, Sch 3.4 [2]; 2013 No 95, Sch 8.9 [2]; 2017 No 17, Sch 4.21 [2].
5 Adjoining owners—land separated by road or watercourse
5 Adjoining owners—land separated by road or watercourse
5 Adjoining owners—land separated by road or watercourse
(1) The intervention of a road or watercourse between 2 parcels of land does not prevent:
(a) the owners of those parcels of land from being taken to be adjoining owners for the purposes of this Act, or
(b) a claim for contribution for fencing work being brought in respect of a fence on either side of the road or watercourse.
(2) 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.
s 5: Am 2007 No 94, Sch 1.31 [1]; 2013 No 95, Sch 8.9 [3].
Part 2 Liability for fencing work
Part 2 Liability for fencing work
Part 2 Liability for fencing work
6 General principle—liability for fencing work
6 General principle—liability for fencing work
6 General principle—liability for fencing work
(1) 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.
(2) This section applies whether or not a dividing fence already separates the adjoining lands.
7 Contribution as between adjoining owners—generally
7 Contribution as between adjoining owners—generally
7 Contribution as between adjoining owners—generally
(1) 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.
(2) 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.
(3) 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.
s 7: Am 2008 No 72, Sch 1 [3].
8 Contribution where negligent or deliberate act
8 Contribution where negligent or deliberate act
8 Contribution where negligent or deliberate act
(1) 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.
(2) Any such dividing fence is to be restored to a reasonable standard, having regard to its state before the damage or destruction.
(3) 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.
9 Contribution when urgent fencing work is required
9 Contribution when urgent fencing work is required
9 Contribution when urgent fencing work is required
(1) 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.
(2) 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.
(3) The other adjoining owner is liable for half the cost (or a greater proportion if section 8 applies) of the urgent fencing work.
(4) 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).
s 9: Am 2007 No 94, Sch 1.31 [1]; 2013 No 95, Sch 8.9 [4].
10 Fencing easements etc extinguished
10 Fencing easements etc extinguished
10 Fencing easements etc extinguished
No obligation to perform fencing work arises or is taken to arise by prescription or implication under the common law.
Part 3 Procedure and implementation
Part 3 Procedure and implementation
Part 3 Procedure and implementation
11 Notice to carry out fencing work
11 Notice to carry out fencing work
11 Notice to carry out fencing work
(1) 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.
(2) The notice is to specify the following:
(a) 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,
(b) the type of fencing work proposed to be carried out,
(c) the estimated cost of the fencing work.
(3) 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.
(4) 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.
(5) An adjoining owner is not liable to contribute to the cost of any fencing work in respect of a dividing fence:
(a) 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
(b) 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.
s 11: Am 2007 No 94, Sch 1.31 [1]; 2013 No 95, Sch 8.9 [5].
12 Procedure when agreement not reached
12 Procedure when agreement not reached
12 Procedure when agreement not reached
(1) 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).
(2) 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.
s 12: Am 2007 No 94, Sch 2; 2013 No 95, Sch 8.9 [6].
13 Jurisdiction of Local Court or Civil and Administrative Tribunal
13 Jurisdiction of Local Court or Civil and Administrative Tribunal
13 Jurisdiction of Local Court or Civil and Administrative Tribunal
(1) The Local Court or the Civil and Administrative Tribunal has jurisdiction to hear and determine any matter arising under this Act.
(1A) Despite subsection (1), only the Civil and Administrative Tribunal has jurisdiction to hear and determine matters affecting land the subject of a Western lands lease within the meaning of Schedule 3 to the Crown Land Management Act 2016.
(2) An application under this Act that is pending in the Local Court or in the Civil and Administrative Tribunal may be transferred from the Court to the Tribunal, or from the Tribunal to a Court, if it appears to the tribunal to which the application was made that, having regard to the subject-matter of the application and the composition and nature of the other tribunal, it is more appropriate for the application to be determined by that other tribunal.
(3) The Local Court or the Civil and Administrative Tribunal which has an application transferred to it under subsection (2) is to determine the application.
(4) (Repealed)
(5) The Local Court may refer the parties to proceedings under this Act to an arbitrator within the meaning of Part 5 of the Civil Procedure Act 2005, but only to the extent to which that Act provides for such proceedings to be so referred.
s 13: Am 1994 No 32, Sch 1; 2005 No 28, Sch 5.14; 2007 No 94, Schs 1.31 [1] [2], 2, 3; 2009 No 9, Sch 3.4 [3]; 2013 No 95, Sch 8.9 [7]–[9]; 2017 No 17, Sch 4.21 [3].
13A Jurisdiction of Land and Environment Court
13A Jurisdiction of Land and Environment Court
13A Jurisdiction of Land and Environment Court
(1) The Land and Environment Court has jurisdiction to hear and determine matters arising under this Act in proceedings to which this section applies.
(2) This section only applies if:
(a) application for the exercise of the jurisdiction is made in relation to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced but not determined, and
(b) the tree that is the subject of those proceedings:
(i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or
(ii) is part of a dividing fence and has caused, is causing, or is likely in the near future to cause damage to the applicant’s property or is likely to cause injury to any person.
(3) The Land and Environment Court may, of its own motion or on an application by a party to an application under this Act that is before the Local Court or the Civil and Administrative Tribunal, transfer the application that is pending in the Local Court or in the Civil and Administrative Tribunal to the Land and Environment Court if:
(a) the application is relevant to proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006 that have been commenced in the Land and Environment Court but have not been determined, and
(b) the tree that is the subject of those proceedings:
(i) has caused, is causing, or is likely in the near future to cause damage to a dividing fence, or
(ii) is part of a dividing fence and has caused, is causing, or is likely in the near future to cause damage to the applicant’s property or is likely to cause injury to any person, and
(c) the Land and Environment Court is satisfied that there is sufficient reason for the application under this Act to be heard and determined by the Land and Environment Court.
(4) An application that is transferred to the Land and Environment Court under subsection (3) is to be continued in the Land and Environment Court and determined by the Land and Environment Court as part of the related proceedings under section 7 of the Trees (Disputes Between Neighbours) Act 2006.
(5) For the purposes of any proceedings to which this section applies, a reference to the Local Court
This is an opening excerpt, not the complete document.