NSW Rights on fence on my property

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scrudu

Member
12 April 2021
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My property has a fence in my back garden which divides my property from my neighbour (height 2.1m). This neighbour has recently extended their garage at the rear or the property to incorporate a living room and deck to overlook their pool. The room has a window which extends to approx 3m in height so when people stand in the room or on the deck, they now overlook my property. I approached my neighbour about overlooking my property, but they were unconcerned.

I temporarily affixed 1 lattice fence extension (height 500m) (https://www.bunnings.com.au/lattice-makers-2400-x-500mm-paling-fence-extension_p0189433) which brought the fence height up to 2.6m. As I wanted to keep peace, I asked the neighbours if this was acceptable to them so I could continue and add 2 more to obscure their direct overlook on my property. They responded that I should remove it immediately and that I cannot affix anything to either the top or my side of the fence. They suggested I instead add posts and trellis on my own property if I wished to extend the height.

I have since learned from an elderly neighbour that this fence actually sits inside my property, as the previous owner installed the fence on their property prior to sale to me. I have verified that to be the case and that the fence indeed sits 70-90mm inside my property as I can see the setback from the old dividing (boundary) fence which remains down the side of our houses and into our front gardens.

My question
1. Given that I "own" this fence as it sits on my property and not on the boundary line, do I have the right to affix items (e.g. trellis/fence extender) to either the top or my side of the fence?
2. Council have been unhelpful when I called them about privacy/plans etc.. Who should be my next port of call? A lawyer specialising in property law?
 

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Atticus

Well-Known Member
6 February 2019
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1. Given that I "own" this fence as it sits on my property and not on the boundary line, do I have the right to affix items (e.g. trellis/fence extender) to either the top or my side of the fence?
2. Council have been unhelpful when I called them about privacy/plans etc.. Who should be my next port of call? A lawyer specialising in property law?
1) Can't say for certain how the law operates in NSW, but in SA, a dividing fence is considered a joint asset regardless if it's on the true boundary or not. If that's the case, you can't lawfully unilaterally do any fence work.... If you did, they could make a complaint & seek action. That said, would they bother. Who knows.

2) Look up whatever the act is in NSW that deals with fences... The act should set out the process involved. Usually a form sent to your neighbor detailing the work you propose.
 

scrudu

Member
12 April 2021
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Bugger, looks like you're right. According to View - NSW legislation
3. Definitions: 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.

From that act, it sounds like a very long winded process of issuing a fencing notice to my neighbours, giving them a month to refuse (as they surely will), and then applying to the NCAT for a tribunal. So very disappointing and frustrating.

I don't understand how it can be the case that a neighbour is granted permission to build a window starting at 2.1m height (top of my fence line) with a direct view over my garden. I have totally lost all privacy in my back garden because of this.
 

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Atticus

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6 February 2019
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I guess it depends on how you want the relationship bewteen the two of you to be moving forward ..... TBH, If it was me in your position, I reckon I would be very tempted to just put up the screens, .... If they could be bothered taking the complaint all the way to court to obtain an order to remove it, it's only going to take you an hour with a screwdriver... The alternative is you build inside the fence or plant shrubbery.
 

scrudu

Member
12 April 2021
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Despite the neighbours clearly giving no thought to the impact of their building on my enjoyment of my garden, I have tried to be friendly and open about my intentions to simply retrieve my privacy back. While I feel they are being rather selfish and churlish (especially about objecting to the fencing extension being "unattractive" especially given they could easily paint/cover/grow things on it), I do not want to get into a war with them and would really prefer to keep things civil and out of court/mediation or involve lawyers. I honestly thought the fence extensions were a simple resolution to the problem, and while they are not "beautiful", I plan to grow creepers and hedging up the fence on my side to cover them up, and had expected they would do the same on their side.

The issue with planting is that it will take a significant amount of time for any planting to grow to 2.7m high to obscure their view, unless I go with something like bamboo which poses a different set of problems. That being said, I do plan to immediately plant greenery here, so perhaps in the future any fence screening would be unnecessary!

As for installing screens on my side, it's considerable more effort and cost on my part to to this, as well as likely looking rather ugly as I'll need to install posts on my side of the fence that are 2.7m above ground and then attach a trellis to the top. Hmmmm I wonder .... if the fence already sits 80cm into my land, I suppose I could possibly put these posts behind the fence (i.e. on their side) - but that would be likely to spark a war also.

But yes, I think I might try with the simplest solution, which is to continue with the panels (3 in total), and hope for the best!
 

Rod

Lawyer
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And write to the neighbours saying they have permission to use 'your land' on their side of the fence. Keep this letter somewhere safe. This will reduce the likelihood of a successful adverse possession claim in the future.

There is supposed to be a newish variety of bamboo that is less invasive. Might assist as a temporary measure. Put it in pots on concrete plinths and remove it when other vegetation has grown.
 

23savage

Member
11 June 2021
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Hi, we had a very similar issue with a client of ours who we provided fence installation in Wagga Wagga for. We agreed with our clients that the best course of action was definitely to continue with installing panels on their side of the border as there is no more you can really do to make the neighbours happy!