Dfa 1991137
Dfa 1991137
Dfa 1991137
Contents (1991-72)
Long Title
Part 1 - Preliminary
1 Name of Act
2 Commencement
3 Definitions
4 Determination as to “sufficient dividing fence”
5 Adjoining owners—land separated by road or watercourse
Part 4 - Miscellaneous
20 Right to enter adjoining land
21 Service of notices
22 Time for service of notices—special provision
23 Costs
24 Recovery of money payable
25 Application of Act to Crown and local authorities etc
26 Act not to affect agreements etc, retaining walls or other Acts
27 Regulations
28 Repeal of Dividing Fences Act 1951 No 8 etc
29 Savings, transitional and other provisions
30 (repealed)
Schedule 2 - (Repealed)
Reprint history
Reprint No 1
1 November 1994
Reprint No 2
28 June 2005
Reprint No 3
19 May 2009
Long Title
An Act to provide for the apportionment of the cost of dividing fences; to repeal the Dividing
Fences Act 1951; and to amend certain other Acts.
Part 1–Preliminary
1 Name of Act
This Act may be cited as the Dividing Fences Act 1991.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
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 com-
mon 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, enclos-
ing 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.
and includes:
(c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and
"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 oth-
erwise, 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).
(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,
(e) any policy or code relating to dividing fences adopted by the council of the local gov-
ernment 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.
(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.
(2) This section applies whether or not a dividing fence already separates the adjoining
lands.
(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 fenc-
ing 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 veg-
etation (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 ex-
penses of carrying out the work to the extent to which those expenses are attributable to
work done for that other purpose.
(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
(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.
(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 Administra-
tive 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 Tri-
bunal may allow).
(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 pro-
posed 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 re-
spect 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 (in-
cluding 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.
(2) If adjoining owners do not agree (within 1 month after one of them has served a no-
tice 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.
(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.
(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 Ad-
ministrative 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 (Dis-
putes Between Neighbours) Act 2006 that have been commenced in the Land and
Environment Court but have not been determined, and
(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 Envi-
ronment Court.
(4) An application that is transferred to the Land and Environment Court under subsec-
tion (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.
14 Orders as to fencing work
(1) The Local Court or the Civil and Administrative Tribunal may, in respect of an appli-
cation 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 in-
volved),
(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,
(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 deter-
mining 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.
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 agree-
ment 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 or-
dered 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.
(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.
(2) Such an order may only be made if the Court or the Tribunal is satisfied that the ad-
joining 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 Tri-
bunal for a variation of the order and the Court or the Tribunal may vary the order in such
manner as it thinks fit.
(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
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 regis-
tered 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.
(6) In this section, "registered surveyor" means a person registered under the Surveying
and Spatial Information Act 2002 as a surveyor.
19 (Repealed)
Part 4–Miscellaneous
21 Service of notices
A notice under this Act is to be served on an adjoining owner by delivering it personally or send-
ing it by post to the owner’s usual or last known residential or business address.
(b) the Court or the Tribunal considers it to be just or equitable in the circum-
stances for leave to be granted.
23 Costs
In any proceedings under this Act, the Local Court or the Civil and Administrative Tribunal may
award costs against either party.
(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 sec-
tion 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 determin-
ing 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 Tri-
bunal.
(5) A certificate given under subsection (4) must identify the person liable to pay the cer-
tified amount.
(6) If a certificate given under subsection (4) is filed in the registry of a court having ju-
risdiction to give judgment for a debt of the same amount as the amount stated in the cer-
tificate, the certificate operates as such a judgment.
(c) a roads authority (within the meaning of the Roads Act 1993) with respect to
any public road, or
(d) an irrigation corporation within the meaning of the Water Management Act
2000, or
(e) an Aboriginal Land Council with respect to land reserved under Part 4A of the
National Parks and Wildlife Act 1974, 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 con-
tribute to fencing work in respect of dividing fences.
(3) In this section, "Crown" includes a statutory body representing the Crown.
(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.
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) The Dividing Fences Regulations 1957 (and any other regulations under that Act) are
repealed.
30 (Repealed)
(Section 29)
Part 1–Preliminary
1A Regulations
(1) The regulations may contain provisions of a savings or transitional nature consequent
on the enactment of the following Acts:
Dividing Fences and Other Legislation Amendment Act 2008
(2) Any such provision may, if the regulations so provide, take effect from the date of as-
sent 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 au-
thority of the State), the rights of that person existing before the date of its publi-
cation, 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 pub-
lication.
(2) Otherwise, this Act applies to and in respect of fencing work whether carried out be-
fore or after the commencement of section 28.
2 Construction of references
A reference in any other Act or in an instrument made under an Act or in any document to the Di-
viding Fences Act 1951 is to be read as a reference to this Act, except as provided by clause 1
(1).
Part 3–Provision consequent on enactment of Dividing Fences and
Other Legislation Amendment Act 2008
Schedule 2 (Repealed)
Historical notes
The following abbreviations are used in the Historical notes:
Am amended LW legislation Sch Schedule
website
Table of amending instruments Dividing Fences Act 1991 No 72. Assented to 17.12.1991.
Date of commencement, 1.2.1992, sec 2 and GG No 7 of 17.1.1992, p 243. This Act has
been amended as follows:
1993 No 33 Roads Act 1993.
Assented to
8.6.1993.Date of
commencement,
1.7.1993, sec 2 and
GG No 73 of
1.7.1993, p 3343.
No 41 Irrigation Corpora-
tions Act 1994. As-
sented to
2.6.1994.Date of
commencement of
the provision of
Sch 3 relating to
the Dividing
Fences Act 1991,
3.2.1995, sec 2 (1)
and GG No 11 of
3.2.1995, p 581.
No 73 Water Management
Amendment Act
2008. Assented to
28.10.2008.Date of
commencement of
Sch 7.1, assent, sec
2 (1).