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Your rights and obligations

When you need to replace, repair or build a new fence it’s important to understand your rights and obligations under fencing law .

When a dividing fenc​e needs to be built, fixed, or replaced, there are a number of things that you should consider.

Normally, the law says that you and your neighbour must equally share the cost of:

  •  building a dividing fence, where there is not one, or
  • repairing or replacing a dividing fence which has been damaged, destroyed or has deteriorated.
  • repairing or replacing a dividing fence that is not a "sufficient" dividing fence.

In some situations, costs may not have to be shared equally, for example, where a neighbour wants a dividing fence that is of a greater standard than what is "sufficient", or where the fence was damaged or destroyed by one neighbour. 

When you need to build or replace a dividing fence, the type of fence that is chosen will depend on: 

  • what you and your neighbour agree to  
  • any local council or legal requirements that apply in your area
  •  limits that apply to your land, and
  • what will be a 'sufficient dividing fence' in your situation.

For more information click on each of the sections below.

The law in NSW does not say what type of fence you should build. It says that neighbours should contribute equally to a ‘sufficient dividing fence’. A sufficient dividing fence should be one that adequately separates your land from your neighbour's land. What is a ‘sufficient dividing fence’ in your particular situation will depend on many things, including:  

  • what type of existing fence there is, if any

  • what your land and the neighbouring land is used for, for example, you may need a particular fence to keep in pets or livestock

  • your privacy and your neighbour’s privacy

  • the types of fences that are used in your area

  • the requirements of your local council, for example, in bush fire prone areas you may be restricted from building a fence out of easily flammable materials

  • whether your fence encloses a swimming pool.

 If a neighbour wants a fence that is of a higher standard than what is considered a 'sufficient dividing fence', they will need to pay the extra amount for that fence. 

 If you and your neighbour can’t agree about the type of fence that should be built, the Local Court or the NSW Civil and Administrative Tribunal (NCAT) can make a decision about what would be a sufficient dividing fence. For more information, see  What if we can't agree?

Normally the owners of neighbouring properties must equally share the cost of:

  • building a dividing fence where there is not one.  
  • repairing or replacing a dividing fen​ce where the original fence has been damaged, destroyed or has deteriorated
  • repairing or replacing a dividing fence that is not a “sufficient” dividing fence
     

Fencing work may involve a number of different costs, including the costs of:

  • designing the fence
  • surveying the land on either side of the boundary
  • preparing, cleaning or altering the land
  • planting, trimming or lopping vegetation
  • building, fixing or replacing the fence
  • building, fixing or replacing a  ‘retaining wall’ that supports or maintains the fence. For more information about this, see Retaining walls.

Costs may not have to be shared equally if:

  • One neighbour wants a dividing fence that is of a greater standard than what is ‘sufficient’
    If one neighbour wants a dividing fence that is of a greater standard than what is ‘sufficient’, they will usually have to pay the difference between the cost of a sufficient dividing fence and the cost of the fence they want. This is because neighbours are only expected to equally share the cost of a sufficient dividing fence.
    For more information see the section above, What type of fence should be built?
  • The original dividing fence was damaged or destroyed by an owner or occupier of the land
    If one neighbour (or their tenant) has destroyed or damaged a fence, they will usually be responsible for paying the repair or replacement costs of restoring the fence to its previous condition.
  • One neighbour is willing to pay the entire cost of building, fixing or repairing a dividing fence.
    Fencing work on a dividing fence must be done with the agreement of both owners of neighbouring property. However, if one owner is happy to pay the entire cost of building, fixing or repairing a dividing fence then their neighbour will not have to share fencing costs with them. It is still important for neighbours in this situation to talk about what type of fence will be built and where it will go.
  • Your neighbour is a public authority such as a local council or the Department of Housing
    Public authorities (for example, local councils) do not have to contribute to fencing costs. If you live next to a public authority and you would like them to contribute, you can try and negotiate. If your negotiations are unsuccessful and you want to take further action you should get legal advice.
  • The dividing fence is also part of a swimming pool fence
    If the dividing fence is part of a fence around a swimming pool, the owner of the swimming pool will usually have to pay the costs of the section of the dividing fence that is also part of the swimming pool fence.
  • Fencing work was done without agreement or a Fencing Order (unless the fencing work was urgent)
    You and your neighbour will usually need to agree on the fencing work to be done.

If you and your neighbour cannot reach agreement, either of you can serve a Fencing Notice. If you still can’t reach an agreement after a month has passed, you or your neighbour can apply to the Local Court or the NSW Civil and Administrative Tribunal (NCAT) for orders about the fencing work to be done (Fencing Orders). 

However, if urgent fencing work is required, one neighbour may get the fence built without agreement or a Fencing Order and still be able to claim half the costs. For more information, see Urgent Fencing work  

You should contact your local council to find out about any restrictions on the kind of fence you can build. Many councils have rules about how high fences can be, and some councils have rules about the sorts of materials you can use (for example, in areas where there is a risk of bushfires, the council may not let you have a wooden fence).

You can find your local council's contact details at the Lo​cal Council Directory.

If you have a swimming pool, the fence that you build will need to comply with laws about swimming pool fences. For more information, see  Pool inspection self-assessment checklists on the  NSW Swimming Pool Register website.

 

Covenants

Sometimes there may be limits on how you can use your land. One type of limit is called a covenant. For example, there may be a covenant that no structure will ever be built on a certain part of your land. A covenant may be noted on your Certificate of Title.

If you own a property where a covenant has been made, you must comply with that covenant unless the covenant is lifted (extinguished). This may affect what type of fence you and your neighbour can agree to.

Easements 

An easement allows someone to use land that belongs to another person for a specific purpose. Common easements include easements for drainage and easements that provide a right of way.

An easement may affect what sort of fence you and your neighbour can build. For example, if you have a right to walk through your neighbour's property to reach the road, your neighbour should not build a fence that stops you from doing so.

Restrictions on User

Another type of limit that might affect the type of fence you can build on your land is called a "restriction on user." A restriction on user may prohibit you or your neighbour from building a dividing fence or may say that you can only have a fence built out of certain types of material. A restriction on user will be recorded on the Certificate of Title for your property.

A dividing fence will usually go on the common boundary line between two neighbouring properties. Sometimes, this will not be possible because:

  • a fence cannot be built on the boundary line (for example, because a river runs through the boundary)
  • it is not clear where the boundary line is

If a fence cannot be built on the boundary line because of the nature of the land, it will usually be built as close as possible to the boundary. You should come to an agreement with your neighbour about where the fence will go and then put this agreement in writing. For more information on making an agreement, see What if we agree?

Finding the boundary line

If you and your neighbour can’t agree on where the boundary line is, either of you can serve the other with a Boundary Notice, explaining that you intend on defining the boundary to do fencing work. If you serve a Boundary Notice on your neighbour, each of you will need to take certain steps to determine the boundary. For more information about this process, see Boundaries.

Underground cables or pipes

Before you carry out any type of excavation work to prepare the land for landscaping, building a dividing fence or retaining wall, you (or your contractor) must lodge an enquiry with Before You Dig Australia to check if there are any underground assets such as electricity cables or gas pipes. Lodging an enquiry with Before You Dig Australia is free. For more information and a guide for home owners, go to the ​​Bef​or​e You Dig Australia​ website.

The best type of fence to build is one that you and your neighbour agree on. As long as you do not breach council or other rules or any covenants, easements or restriction on users, you and your neighbour can agree to build the fence you want, even if this is different from what might be a sufficient dividing fence. 

Any agreement should be written down and signed by you and your neighbour.

For more information on how to come to an agreement and to put your agreement in writing, see What if we agree?  

If you and your neighbour can’t agree, the Local Court or the NSW Civil and Administrative Tribunal (NCAT) can make a decision about what would be a sufficient dividing fence, or how the costs of fencing work should be split. For more information on this process see What if we can’t agree?

If you need to go on to your neighbour's property to do fencing work, to undertake work on your home or utilities, for example, a sewer line, you can't do this without their permission.

 There are certain exceptions to this. You may be able to enter your neighbour's property to do f​encing work at any reasonable time without asking them first if:

  • you and your neighbour have an agreement about the fencing work 
  • you have a Local Court or NSW Civil and Administrative Tribunal (NCAT) Order for fencing work
  • you have an order under the Access to Neighbouring Land Act from the Local Court, or
  •  urgent fencing work is required.

You should make sure that you do not enter your neighbour’s property without their permission.  If you enter yo​​ur neighbour's property without their permission you will be trespassing. If you need to enter your neighbour’s land to build a fence and they will not give you access, you should get legal advice.

For more information about urgent fencing work, see Urgent fencing work.

If you or your neighbour urgently need to fix or replace a fence, it may be possible to do the work without a Fencing Order and then claim costs.

For more information, see Urgent fencing work.