This Act may be cited as the Dividing Fences Act 1991.
This Act commences on a day or days to be appointed by proclamation.
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 common 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, enclosing 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.fencing work means:
(a) the design, construction, replacement, repair or maintenance of the whole or part of a dividing fence, and(b) the surveying or preparation of land (including the trimming, lopping or removal of vegetation) along or on either side of the common boundary of adjoining lands for such a purpose,and includes:(c) the planting, replanting and maintenance of a hedge or similar vegetative barrier, and(d) the cleaning, deepening, enlargement or alteration of a ditch, embankment or watercourse that serves as a dividing fence.lease includes a sublease and an agreement for a lease.
local land board means a local land board constituted under the Crown Lands Act 1989 for the district in which the dividing fence concerned is or is proposed to be located or, if the dividing fence is or is proposed to be located on the boundary of or within 2 such districts, the local land board of either of those districts.
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 otherwise, 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.
4 Determination as to “sufficient dividing fence”
In any proceedings under this Act, the Local Court or a local land board is to consider all the circumstances of the case when determining the standard for a sufficient dividing fence for the purposes of this Act, including the following:(a) the existing dividing fence (if any),(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,(d) the kind of dividing fence usual in the locality,(e) any policy or code relating to dividing fences adopted by the council of the local government 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.
5 Adjoining owners—land separated by road or watercourse
(1) The intervention of a road or watercourse between 2 parcels of land does not prevent:(a) the owners of those parcels of land from being taken to be adjoining owners for the purposes of this Act, or(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 a local land board could reasonably be used, as a dividing fence by the owners of the land on either side of it.