Neighbourly disagreements can arise over many issues, but few cause as much friction as a structure built out of frustration or malice. Known as a "spite fence", these structures are intentionally constructed to block a neighbour's view, restrict sunlight or disrupt their enjoyment of their land.
When a dispute escalates to this level, affected property owners often assume that proving bad intention is enough to force the fence’s removal or alteration. However, Australian property law approaches these disputes through a nuanced combination of legislation, local planning controls and common law principles.
Understanding how the Dividing Fences Act 1991 (NSW), council development standards and the law of private nuisance interact is essential for any landowner dealing with an obstructive or contentious boundary structure.
The statutory framework governing dividing fences
In New South Wales, boundary structures between adjoining properties are primarily governed by the Dividing Fences Act 1991 (NSW). The Act establishes a framework for determining what constitutes a "sufficient dividing fence" and sets out how the costs of construction and maintenance are shared between adjoining owners.
Under section 4, assessing sufficiency requires a court or tribunal to consider all relevant circumstances, including:
- The existing dividing fence, if any.
- The purpose for which the adjoining lands are used or intended to be used.
- The degree of privacy or other concerns of the adjoining owners.
- The standard and type of fence usual in the local area.
- Relevant local council planning codes or environmental planning instruments.
Rather than focusing on personal motives, the Act centres on objective standards: practical utility, standard height and fair division of costs. Should an owner decide to install a fence that exceeds local standard requirements, they are generally responsible for the extra expense. Likewise, where a neighbour builds a structure strictly inside their own boundary line and within planning approvals (without seeking shared funding), the Act rarely steps in to compel removal simply over a personal dispute.
Local planning rules and height restrictions
Before exploring formal legal avenues, it is often helpful for property owners to check whether the fence aligns with local council planning rules. Councils enforce development regulations that limit the height, placement and materials of boundary structures.
Under NSW planning regulations, many standard residential boundary fences can be built without needing formal council approval, as long as they meet straightforward guidelines. In most residential areas, a fence behind the front building line can usually stand up to 1.8 metres high above natural ground level without an approval, while fences in the front yard are generally limited to 1.2 metres.
If a spite fence exceeds these height thresholds without development consent or if it violates local heritage or drainage requirements, the local council can then step in. Requesting council assistance with planning compliance is often a faster, simpler way to resolve an over-height fence issue than going through the courts.
Why loss of a view is rarely an actionable nuisance
When a boundary fence blocks a beautiful outlook, property owners are often surprised to learn that Australian common law does not guarantee an automatic right to a view.
Because an obstructed view alone isn't grounds for a legal claim, property owners generally cannot take court action simply because a neighbour's fence has altered their scenery or impacted property value.
Can malice transform an act into a legal nuisance?
A legal remedy may exist if the construction of the fence constitutes a private nuisance. To prove this, a plaintiff must demonstrate a substantial and unreasonable interference with their use and enjoyment of their land.
This is where the concept of malice becomes legally significant. While ordinary, reasonable uses of land cannot be rendered unlawful merely because a neighbour dislikes them, deliberate bad intention can tip an otherwise marginal interference into an unreasonable one.
The influence of bad faith in nuisance claims was famously demonstrated in Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468. In that case, the defendant deliberately fired shotguns near the boundary of a fox breeding farm to frighten the animals and disrupt the plaintiff’s business out of spite. The Court held that conduct undertaken purely out of malice can convert what might otherwise be an allowable activity into an unlawful private nuisance.
In the context of a spite fence, if a structure serves no legitimate function, safety benefit or privacy purpose, a court can consider whether that underlying motive makes the interference unlawful.
Practical steps for resolving boundary disputes
Resolving a boundary fence dispute is often about finding the right balance between your legal rights and keeping the peace with your neighbour. If you are dealing with an obstructive structure, here is a practical approach to help navigate the situation:
- Obtain a formal boundary survey: Confirm the exact legal boundary of the property. A fence built even slightly across a boundary line constitutes a trespass, giving the affected owner immediate legal grounds to demand its removal.
- Review local planning requirements: Check whether the fence complies with local council height limits, setback controls and exempt development criteria.
- Review existing fencing agreements: Determine whether formal fencing notices were served under the Dividing Fences Act 1991 (NSW) or if prior written consent was given.
- Seek professional mediation: Prior to escalating to formal litigation, our dispute resolution team at Aubrey Brown Lawyers can assist in negotiating a structured resolution, helping you navigate complex neighbour disputes clearly and cost-effectively.
- Document the impact: Keep detailed records of when the fence was built, its physical dimensions, photo evidence and any relevant correspondence that sheds light on the surrounding circumstances.
Getting advice
Boundary and fencing issues can quickly become emotionally charged and legally complex, particularly where property values, privacy and personal relationships intersect.
Before taking action or putting up a contentious structure, getting legal advice early can help property owners understand their obligations, evaluate planning rules and pursue an effective resolution.
At Aubrey Brown Lawyers, our Litigation team can assist with property disputes, dividing fence applications, planning compliance and easement issues.
