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Disputes over Fences

 

What is a fence?

 

A fence in NSW is defined by the Dividing Fences Act 1991as a structure which can include a wall, ditch, hedge, water course or embankment that encloses land, and its foundations or supports.

 

Must there be a fence?

 

No, a fence between adjoining lands is not legally necessary if neither party wants one.

The act further sets out the basic principle that when building a common fence, the costs associated with such a fence are to be shared equally between neighbours. However, this principle does not apply across the board as there are many types of fences one can get with varying prices. You are liable to pay if the cost of the work provides a ‘sufficient dividing fence’. Therefore if you think the proposed cost of your fence is too high it is advisable to contact us to advise you whether or not you need to pay because what is considered to be ‘a sufficient dividing fence’ will depend your circumstances.

If one owner wishes to have a better fence, then that owner must pay the costs that will be associated for the extra services such as a fence which is of a higher standard than what is required for ‘a sufficient dividing fence’. Another example of costs which would not need to be equally shared would be if the fence is damaged; the owner that damaged it will be responsible for the full cost if the existing fence is damaged. The damage can occur deliberately and negligently by the owner or by someone else who entered the land with either express or implied permission.

Another issue that the act deals with is the repair of the fences. If the fence is in urgent need of fixing, the owner can do so without contacting the adjoining owner. The owner can also ask the adjoining owner to contribute to half of the cost. However, if one party damages the fence through their carelessness, by fire or otherwise, then the person responsible for the damage will have to pay for the repairs. If an agreement cannot be reached then we can initiate proceedings in the Land Board – a community based dispute resolution tribunal, which sits as a tribunal in open court and has similar procedures to a Local Court. If this however is not an option, we can initiate legal proceedings on your behalf in your Local Court to make an order before the work is carried out.

If you or your neighbour is the one wanting a fence, you must first serve a Fencing Notice on the owner of the neighbouring property before starting any work. The written notice must specify:

  • The type of fence to be used 
  • The height and colour of the fence 
  • The estimated cost of the fence and who pays for what 
  • The position of the fence 
  • The provision for removal of the existing fence 
  • The written Fencing Notice must be served on the other owner either personally or posted through to their last or usual known residential or business address. 

Once the notice has been served you should try and negotiate an agreement. When negotiating an agreement it is a good idea to put the agreement in writing. This agreement should be dated by you and your neighbour, and include details such as those listed above and any other variations agreed upon.

One month after the Fencing Notice has been served, if you are unable to reach an agreement with your neighbour we can initiate proceedings on your behalf to the Land Board or to your Local Court to have the matter decided.

 

The position of the fence

 

Problems related to where a fence is position can often be resolved by having a survey done by a licensed surveyor. The cost of the surveyor can be shared, or, in the event of conflict over how the cost will be shared, owners may wish to apply to Land and Property Information for a boundary determination by:

  • filling out the necessary forms
  • enclosing relevant supporting documents and material with the forms
  • paying the $92 lodgement fee
  • Agreeing to pay the survey costs

The Land and Property Information will then consult a surveyor and have a survey carried out. A determination is made after a minimum of 21 days is given to the adjoining owners to respond to the proposed decision.

Land and Property Information then makes a decision that is just and reasonable. If you are unhappy with the decision, you may appeal to the Land and Property Information within 28 days of receiving notice.

 

Encroaching building

 

Problems related to when a structure is built across the boundary between two properties can be dealt with through the Land and Environment Court. The Court can make orders relating to:

  • compensation
  • transfer or lease of the affected land
  • grant of an interest, e.g. an easement
  • removal of the structure / part of the structure causing the problem 

 

Disputes over whether encroaching has occurred can be settled by consulting a surveyor.

Adverse possession

 

If a survey indicates that a person has been occupying a block of land that is adjacent to their own for more than 12 years, the original wner of this adjacent block may has lost the right to remove them (under the Limitations Act s27(2)). The land can then be claimed by the person occupying it under adverse possession.

  • Application for adverse possession must be for the entire piece of land if the land in question is Torrens title, and the application must be made to the Land and Property Information.
  • If a land is of old system title, the application must be made to the Supreme Court, and usually results in a shift of boundaries. This process would be long and expensive. 

 

Crossing boundaries and trespass

 

The occupier of a property usually has the right to refuse access or entry to their property, Trespassing occurs when an individual intentionally enters another’s property without the occupier’s consent. Accidental entry, such as tripping and falling onto the property,  is not considered trespassing.

The boundary exists even without the presence of a fence. If a person is asked to leave and refuses to, the owner can call the police and have that person charged with trespassing under the Inclosed Lands Protection Act 1901.

Trespass is a civil tort, which means that a trespasser can also be sued for damage they have caused.

 

If you need more information or assistance with dealing with a problem with a neighbouring fence. Complete and submit the Express Enquiry form on the top right hand side of this page and we will contact you to discuss your enquiry or call us on 1300 QUINNS (1300 784 667) or on +61 2 9223 9166 to arrange an appointment.