Disputes between neighbours about dividing fences are among the most common of neighbour disputes.
The NSW Government have specific laws that set out dividing fence requirements and processes which control and regulate dividing fences under the Dividing Fences Act 1991 (NSW). 0
Some fences don't need Council's approval where they comply with the NSW Housing Code provisions for fences.
Where Council's approval is required the rules for fences are set out in Council's Development Control Plan.
What role does Council play?
Council is a Consent Authority. What this means is that Council assesses Development Applications and Complying Development Applications when approval is required before you can erect a fence.
Council has no jurisdiction to settle disputes between neighbours in relation to dividing fence disputes, this is usually dealt with by Local Courts.
Where there is unauthorised works Council has statutory discretion as to whether or not it takes enforcement action.
What approvals are required from Council?
Most dividing fences up to a height not exceeding 1.8m above ground level and located behind the building line are Exempt Development. If they are not exempt then you must obtain approval by lodging a Complying Development Certificate Application or a Development Application with Council.
Who must pay for the dividing fence?
The general rule is that each neighbour pays half the costs of erecting a sufficient dividing fence between each property. But this is not always the case and it gets more complicated when you start to read in more detail the provisions of the Dividing Fences Act 1991.
By example where a dividing fence is required as part of a pool fence under the Swimming Pool Act 1992, special provisions apply under the Dividing Fences Act 1991.
Council does not give legal advice about who pays for any fence in any circumstance.
Who gives advice about dividing fence disputes?
The main sources of advice about dividing fence laws and disputes are:
- NSW Department of Lands
- Local Court's Chamber Magistrates
- Community Justice Centres
Will Council or the Crown pay half the costs of a dividing fence?
The short answer is NO.
Section 25 of the Dividing Fences Act 1991 provides that the Act does not operate to impose any liability, or to confer any rights, with respect to dividing fences on:
- the Crown
- a council of a local government area
- any trustee of any public land
- a roads authority, and
- others as provided by the Act or Regulations.