Some dividing fences do not need Council approval but the provisions of the Dividing Fences Act 1991 always apply.

What is a dividing fence?

A dividing fence is a fence that separates the lands of adjoining owners. The fence may be a structure of an acceptable material, a ditch, an embankment or a vegetative barrier (e.g. hedge). It does not include a retaining wall or the wall of a building.

When are dividing fences exempt from the need to gain Council approval?

Council’s Exempt and Complying DCP (PDF) sets out the criteria that must be satisfied before you can erect or even replace existing fencing without a development application having been made and approval having been granted.

Fences side and rear, Complying development checklist (PDF)

Who is responsible for dividing fences?

Each owner is equally responsible unless a swimming pool is involved or the neighbouring land is owned by Council or the Crown.

If a swimming pool is erected on one property and the dividing fence is required to form part of swimming pool fencing then section 33 of the Swimming Pools Act 1992 overrides the Dividing Fences Act 1991.

If the neighbouring land is government owned then they are exempt from the Dividing Fences Act 1991 with regard to sharing the cost.

For further plain English advice go to these web pages:

• The Local Courts – Dividing Fence Advice
• The Law Society of NSW – How to deal with problems with fences  
• The Department of Lands – Fact Sheet (PDF)
  

I have a dispute with my neighbour about the type of fence or who pays for it?

If there is a dispute between neighbours over the type of fence or who pays for what, there are three options:

• Mediation and resolution through a Community Justice Centre
• Hearing before Waverley Local Court
• Hearing before the Local Lands Board

Council actively encourages mediation through a Community Justice Centre rather then the more adversarial options of Court or the Local Lands Board.

Council does not adjudicate disputes between neighbours.

If your neighbouring land is Crown Land or Council land then you must pay the full costs of any dividing fence but this does not mean you can erect anything you want. You must still consult with the relevant NSW Government Department or Council as the case may be.

The fence was erected without approval where prior approval was required from Council. What happens?

If a fence is erected illegally (that is, where development consent was required but not obtained), and there is a reason why the fence is not acceptable in the public interest, we can issue demolition orders.

Council has discretion as to whether or not it takes such action. There is no legal power to force the Council to take action if it determines that it is not in the public interest to do so.

If we refuse to take action then the affected neighbour can take their own action under section 123 of the Environmental Planning and Assessment Act 1979 in the Land and Environment Court.

Materials that are not acceptable?

Materials that are generally prohibited by Council’s policies and development controls include:

• Barbed wire
• Razor wire
• Chain wire
• Steel or metal wire
• Broken glass or the like cemented into masonry

Council is very serious about these general prohibitions to the point that we have successfully defended our policies and controls in the Supreme Court of NSW. Once we become aware of any such undesirable material being used we may take steps to order its removal and replacement if it is deemed in the public interest to do so. Private security does not take precedence over public safety or good urban design and built form outcomes.

What materials are discouraged?

Woollahra has a high quality urban environment. We aim to maintain and improve that quality by ensuring that better quality fencing materials and designs are used, particularly where they are visible from public places.

Therefore, we discourage materials such as timber and metal lattice that are not durable and which will quickly fade or degrade. Where timber palings are used they should be lapped, capped and stained. Colorbond™ or like metal fencing is acceptable where it is not visible from public places and is used in the more contemporary areas of the municipality. However, is not acceptable in heritage conservation areas where we aim to replicate historic fencing forms, typically by way of hardwood timber paling fencing, masonry and sandstone as best reflects the historic fencing materials of the locality.

What fencing forms are encouraged?

Where fences are visible from public places there is a need to ensure that they are of the highest quality. We encourage suitably detailed rendered and painted masonry fencing and high quality sandstone fencing in these localities. In some more contemporary contexts stainless steel wire fencing may be considered so as to preserve views or to support vegetation.

We actively encourage hedges being used as dividing fences but we do not encourage exotic species or hedges formed by trees which grow to excessive heights, blocking views, overshadowing private open spaces or habitable rooms or which cause damage to neighbouring land or which may invade sewer systems or stormwater pipes.