Retaining Walls and The Dividing Fences Act – What You and Your Neighbours Need To Know!

Posted 05 September 2023

Category: Strata

Dividing fences and retaining walls

The Dividing Fences Act 1991 (Act) now applies to retaining walls which provide support for a fence separating the land of adjoining owners, whether on the common boundary of adjoining land or on a line other than the common boundary.

Pursuant to section 3(c) of the Act, ‘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:

• any gate, cattlegrid or apparatus necessary for the operation of the fence,

• any natural or artificial watercourse which separates the land of adjoining owners,

• 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.

As outlined above, only the parts of the retaining wall directly supporting the dividing fence (i.e. fence posts going into the retaining wall) is considered to be a ‘fence’ as defined under the Act and can be included in the equal sharing of cost to carry out fencing work in respect of a dividing fence.

The case of Margy L Walsh v R Tomsic [2014] NSWCATCD 118 found that in circumstances where work is necessary to repair a retaining wall for its principal purpose as a retaining wall, and not as part of a dividing fence (i.e. work necessary for the immediate support of a fence), contribution from the adjoining owners will not be available.

The following principles were reiterated in Inacio v Luckose [2020] NSWCATAP 149 at [67]:

“The fact that a retaining wall provides support for a dividing fence, in the sense that the fence will fall over if the wall is removed, is not sufficient to establish that the wall is a foundation or support for the fence. It must be a common feature of retaining walls that whatever is constructed above the wall is likely to collapse if the wall is removed. It would not be consistent with the intention of the Act that any retaining wall constructed on or near the boundary between adjacent properties will be a dividing fence or part of a dividing fence. It is necessary that the wall be constructed as a foundation or support for a dividing fence, that is, for the purpose of providing a foundation or support for the fence.”

The main question to answer is whether a structure is a dividing fence and whether a retaining wall is a foundation or support for a dividing fence and this determination must have regard to the purpose for which the structure or wall has been constructed.

Other common issues with fences

Bannermans team of experts can help with all your boundary and fencing issues. A few examples below include:

2. 2. 1. Do you want to move the fence to the correct boundary? Click the link below to find out more: Caught in a Boundary Dispute? Know your rights

2. 2. 2. You want the person whose tree damaged your fence to pay the fix or replace the fence? Click the link below to read more: Trees Causing Damage – What can you do?

2. 2. 3. You have an owner whose support for your property failed and damaged your fence to pay to fix or replace the fence. Click the below to find out more: What’s holding you up? Neighbouring Excavations: The right to support

2. 2. 4. What is the interrelationship with other laws in fencing disputes? Click the below to read on: Fences, Trees and Retaining Walls

 Need further advice for the complex issues?

We understand that this area is complex and factually driven so feel free to contact us directly at enquiries@bannermans.com.au or on 02 9929 0226 to obtain further advice or representation regarding:

1. 2. 1. Who should pay for items related to fencing or surrounding issues in regards to retaining walls, trees and the law of support;

2. 2. 2.  What sort of steps are available in seeking or defending a payment claim; and

2. 2. 3. What sort of places you can go if you cannot reach an agreement with your neighbour.

***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.