When a pool sits close to or against a boundary fence, removal creates a specific set of obligations around that shared fence. The fence may need to be temporarily removed for machine access, it may be damaged during the excavation process, or its footings may be disturbed when the pool’s coping is removed. Understanding your legal position and your neighbour’s rights before work starts helps avoid disputes that can become costly and stressful.
This guide covers the Dividing Fences Act 1991 (NSW), practical management of the fence during pool removal, and what to do if things go wrong.
Who Owns a Dividing Fence?
Under the Dividing Fences Act 1991 (NSW), a dividing fence between two properties is technically jointly owned by both adjoining owners. Both parties have rights in relation to the fence and, importantly, responsibilities for its maintenance and replacement.
This means:
- You cannot remove a dividing fence without at least notifying your neighbour
- If the fence is damaged during your pool removal, you may have a shared or sole responsibility to repair or replace it depending on the circumstances
- Your neighbour has a right to object if you want to change the fence type, height, or position
In practice, most fence-related pool removal issues are resolved between neighbours without formal legal process, but knowing the legal framework helps if disputes arise.
When Does Pool Removal Affect a Shared Fence?
The fence is typically affected when:
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The pool coping is attached to or runs adjacent to the fence: Many older pools have coping that runs right to the fence line. Removing the coping can loosen or undermine fence posts.
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The excavator needs access within the fence line: To break up the pool shell or lift a fibreglass shell, the machine may need to work within 500mm of the fence, risking contact or ground movement near fence footings.
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The fence needs to be removed for machine access: If the gate is too narrow for the machinery, a section of fence may need to come down to allow equipment access to the pool area.
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Hydraulic breaking generates lateral force: Breaking a concrete pool wall that’s close to the fence can transmit vibration and force into the fence and its footings.
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Ground level changes after fill: If the pool is on the boundary side and the fill creates a different ground level, the fence may be sitting on unsupported ground after backfilling.
Temporary Fence Removal for Access
If a section of fence needs to be removed to allow machine access, the correct process is:
- Tell your neighbour first. This isn’t just courtesy, removing part of a dividing fence without consent could be considered a breach of your neighbour’s rights under the Act.
- Agree on the section to be removed and the reinstatement standard. Will it be reinstated to its current condition? Who bears the cost?
- Arrange reinstatement promptly. Remove the minimum required section and reinstate it as soon as the machinery has finished, don’t leave the fence down longer than necessary.
- Who bears the cost? If you need to remove the fence for your pool removal (which benefits only you), the reinstatement cost is yours. If the fence was already in poor condition and needed replacement, there may be a discussion about shared contribution to a better replacement.
In most cases, neighbours in Newcastle and Lake Macquarie suburbs cooperate without formal process. A few days’ advance notice and a clear commitment to reinstate the fence is usually sufficient.
If the Fence Is Damaged During Removal
If the fence is damaged during pool removal, by the excavator, by ground movement, or by vibration from hydraulic breaking, the immediate question is who is liable.
Under NSW law, if damage is caused by your contractor’s negligence, the contractor’s public liability insurance should cover the cost of repair or replacement. If the damage arises from the inherent proximity of the pool to the fence (rather than negligence), the position is more nuanced:
- If you (the pool owner) directed work that you knew would risk the fence, the responsibility may be yours
- If the contractor proceeded without adequately protecting the fence, liability may be shared
In practice:
- Document the fence condition (photos) before work starts
- Confirm your contractor has current public liability insurance (minimum $5-10M for this type of work)
- If damage occurs, report it to your contractor immediately
- Get written agreement on repair/replacement and timeline before the contractor leaves site
The Pool Fence vs the Boundary Fence
It’s worth distinguishing between the pool safety fence (which surrounds the pool area and is required by the Swimming Pools Act 1992) and the dividing fence (which marks the boundary between properties). These can be the same fence, in many older Hunter region properties, the boundary fence doubles as the pool barrier, but they have different legal frameworks and different obligations.
When the pool is removed, the pool safety fence obligation ends (see our guide on pool fencing obligations after pool removal). However, the dividing fence obligation, which requires a reasonable fence to be maintained between adjoining properties, doesn’t end. The boundary fence itself remains relevant independent of the pool.
After Pool Removal: Does the Fence Still Make Sense?
Once the pool is gone, the fence that surrounded the pool area may no longer make sense as a property boundary feature. Some homeowners choose to:
- Remove the existing pool fence and replace with a new boundary fence that follows a more logical line
- Relocate the fence to give the backyard a more open feel (if the pool fence was set in from the boundary)
- Keep the existing fence in place if it’s still in good condition
Any change to the dividing fence position or type requires your neighbour’s consent. Jointly funded improvements to a dividing fence require agreement on the standard, style, and cost-sharing arrangement.
If a Dispute Arises
If you and your neighbour can’t agree about fence-related costs or damage after pool removal, the resolution pathway is:
- Formal Dividing Fences Notice: Serve a written notice on your neighbour specifying the proposed fence work and cost sharing
- NCAT (NSW Civil and Administrative Tribunal): Can hear dividing fence disputes where neighbours can’t agree, with relatively low filing costs
- Community Justice Centre: Free mediation service that can help resolve neighbour disputes before they reach tribunal
Most fence disputes don’t escalate this far, early, good-faith communication resolves the majority of issues. The important thing is to communicate proactively before work starts, not reactively after something goes wrong.
Practical Steps Before Work Starts
A simple pre-removal checklist for fence management:
| Step | Action | Timing |
|---|---|---|
| Inspect and photograph | Document the fence condition | Before work starts |
| Notify neighbour | Inform about the removal and any access needs | At least 1-2 weeks prior |
| Agree on access and reinstatement | Get written confirmation if fence removal needed | Before work starts |
| Confirm contractor insurance | Get copy of public liability certificate | Before engaging contractor |
| Discuss any anticipated risk | Tell contractor about proximity of fence to pool | Before work starts |
Newcastle and Lake Macquarie Context
In Newcastle’s older suburbs, Hamilton, Adamstown, Charlestown, Wallsend, fibro, brick, and timber fences are common, and many are already aging. A pool removal that disturbs a fence in marginal condition may be the trigger for a full fence replacement. This is typically an opportunity to discuss shared replacement costs with the neighbour rather than a dispute.
In newer Lake Macquarie suburbs, Toronto, Warners Bay, Swansea, Colorbond fences are more common and generally more robust. These can usually survive machine access in an adjacent pool removal with appropriate protection measures.
Frequently Asked Questions
Do I need my neighbour’s written consent to temporarily remove a section of dividing fence? Ideally yes. While the law doesn’t require written consent for temporary fence removal, getting written agreement protects you if a dispute arises later. A simple text message exchange confirming agreement is better than nothing.
Who pays if the contractor damages the fence during pool removal? If the damage results from contractor negligence, their public liability insurance should cover it. If the fence was already in poor condition and the contractor took reasonable precautions, the situation is less clear. Document everything before and during the project.
Can my neighbour prevent me from removing my pool because it might affect the fence? No, a pool on your property is yours to remove. However, you cannot interfere with the dividing fence (damage, remove, or alter) without your neighbour’s agreement or a formal dividing fences notice. Your contractor must work in a way that respects the fence.
If the pool fence and boundary fence are the same structure, what happens when the pool is removed? The pool safety obligation ends, but the dividing fence obligation continues. The fence should be maintained (or replaced if damaged during removal) as a dividing fence even though it no longer serves a pool safety function.
My neighbour has objected to my pool removal because they’re worried about the fence. What can I do? Reassure them by sharing the contractor’s plan, insurance details, and your commitment to reinstate any affected fence work. If they remain objecting to the removal itself, rather than just the fence, note that they have no right to prevent you from removing a pool on your own property.
Managing a pool removal near a boundary fence in Newcastle or Lake Macquarie? Contact Hunter Pool Removals for a professional assessment, all fence-adjacent situations are inspected before quoting.