What is a dividing fence?
If your fence divides your property from a neighbouring property the Dividing Fences Act 1991 (NSW) may apply. This Act applies to all “dividing fences” but not to a common property fence dividing two lots within the strata scheme or a common property fence dividing a lot and the common property.
The first step is therefore to consider whether the fence is, or is not, common property. If it is then the owners corporation will be responsible for its ongoing maintenance and repair unless it has passed a resolution absolving itself from doing so. If it is lot property, then you need to consider whether or not it is a “fence” within the meaning of the Dividing Fences Act.
The definition of a fence is broad and it includes hedges, structures, ditches, embankments and natural water courses that extend along the boundary separating the adjoining land. It does not however include a retaining wall (unless it is part of a foundation or support necessary for the support or maintenance of the fence) or a wall that is part of a house, garage or other building. Example: If your lot is separated by the garage wall of the lot next door and a hedge extending from the garage wall, then the hedge could be considered to be a fence but the garage wall would not be.
Who is responsible?
If there is no sufficient dividing fence then the general principle is that you and your neighbour are liable in equal shares for contributing to fencing work that would result in a sufficient dividing fence. This does not mean that a lot owner whose neighbour wants to trim a boundary hedge for aesthetic reasons is necessarily liable to contribute to this work, they may not be liable to do so due to the definition of “fencing work”.
In situations where one owner wants a fence that is of a higher standard than a “sufficient dividing fence” they are responsible for the work that would take the fence to the higher standard.
Where fencing work is required due to the negligent or deliberate act of an owner (or someone who was on the land with their permission) then only that owner is responsible for the work required to restore the fence to a reasonable standard.
What are you responsible for?
This is where you step into a grey area. The Act does not define what is a sufficient dividing fence. Instead, if there is a dispute, you may make an application in either the Local Court or the NSW Civil & Administrative Tribunal (NCAT) for a determination. The Act requires the decision maker to consider all the circumstances of the case including the existing dividing fence, the purpose the land is used for, privacy concerns, the standard and type of dividing fences in the area and local government or planning authority policies for the area. A word of warning: what is sufficient in one case may not be sufficient in another.
If you have concerns about your liability then you should seek legal advice.