Divided we fall

Catchwords: Property Law, Dividing Fences Act, dispute, “sufficient fencing”, mediation, Court costs, NCAT, Local Court

The Dividing Fences Act 1991 (NSW) (“DFA”) regulates the rights between adjoining landowners to insist on a contribution to the cost of “sufficient” fencing work from their neighbour.

The way it works is that your neighbour is liable to contribute in equal proportions to the cost of fencing work to the standard of a sufficient dividing fence.

S7(1): If the fence is of a greater standard, then you have to pay extra, However, if the neighbour (or invitee) has been negligent, or damaged the fence deliberately, then they are liable for up to the whole cost of the fence.

S8: Generally, under the Act, you serve a S11 notice on the neighbour with a cost estimate and the suggested proportions of contribution to the prosed fencing work, if they are not equal.

The neighbour is not liable for any fencing work done before the S11 notice is served or before there is an agreement or a Court order. (This excludes absent landowners.)

Now for the hard part:

If there is no agreement after service of the S11 notice, you “may” attend a Community Justice Centre to see if you can resolve the issues of contribution to the proposed fencing work and, failing that, without one month after service of the notice, you can apply to the Local Court (or the Civil and Administrative Tribunal now known as the NSW Civil and Administrative Tribunal or  “NCAT”) the for orders (S13 DFA) (only NCAT has jurisdiction of for leased land under the Western Lands Act).

You are now suddenly in the Court system.

Decisions of the Local Court are final, the only appeal being to the Supreme Court on a point of law. Decisions of NCAT are appellable to the NCAT Internal Appeal Panel, again on a point of law, or on the facts with leave and decisions can also be set aside.

The Local Court or NCAT can award costs against either party (S23 DFA).

The Law Reform Commission (Report No. 59 1988, S3.1), though falling short of recommending compulsory mediation, stated that the objective of the Act should be to encourage settlement of fencing disputes by agreement, not litigation.

Mediation of these disputes was preferred to going to Court because it was cheaper, simpler and the lawyers would not have to be involved.

However, under the Act, mediation is not compulsory and time runs from service of the S11 notice.

What the Act does is drive landowners into the Court system, conveyor belt fashion, rather than help avoid it.

While the Local Court and NCAT  have the mantle of being local and informal, important rights can be affected and substantial costs incurred.

Try to resolve matters with your neighbour because in the system as it stands, divided we fall.

Jonathan de Vere Tyndall

Updated 6 April 2015, originally published The Land on 29 March 2001

Editors note: The articles published contain comment only and not legal advice, for which you should retain a solicitor. No responsibility is accepted for the accuracy of the contents.