Dividing fence disputes with neighbours: your questions answered

This factsheet does not address boundary and retaining wall disputes.

What is the legal framework?

The Dividing Fences Act 1991 (NSW) sets out:

1. The responsibilities of adjoining owners to share the cost of a ‘sufficient dividing fence’ in certain cases;
2. Retaining walls where the wall is necessary for supporting and maintaining the fence; and
3. Responsibilities for when there is a boundary dispute.

What fence is required?

The law says that neighbours should contribute equally to a ‘sufficient dividing fence’.

What is a sufficient dividing fence will depend on: 

• the standard of the existing fence, if any
• other fence styles in the area
• the way the land on either side is used
• the Local Council’s requirements
• privacy concerns of the adjoining landowners. 

Who pays?

Generally, the owners of neighbouring properties must equally share the cost of carrying out fencing work in respect of a dividing defence of a standard not greater than the standard for a sufficient dividing defence.

Costs may not have to be shared equally if:

• One neighbour wants a dividing fence that is of a greater standard than what is ‘sufficient’
• The original dividing fence was negligently or deliberately damaged or destroyed by an owner or occupier of the land
• One neighbour is willing to pay the entire cost of building, fixing or repairing a dividing fence.
• Your neighbour is a public authority such as a local council
• The dividing fence is also part of a swimming pool fence
• Fencing work was done without agreement or a Fencing Order, unless the fencing work was urgent.

If one owner is building a new home and wants to put a new fence in or replace an existing fence, that owner can serve a fencing notice and ask for a contribution. However, if the existing fence is ‘sufficient’ and they want a higher standard, the owner of the new home would be responsible for the costs.

Do I need to get more than one quote for a fence?

No. There is no requirement to give more than one quote.

Where does the fence go?

A dividing fence will usually go on the common boundary line between two neighbouring properties.

If there is a dispute about where the boundary is, seek legal advice.

Can I enter my neighbour’s property without their permission?

This is considered trespass unless:

• Urgent fencing work is required (see below),
• You have an order from NCAT or Local Court of NSW allowing for access or fencing work.

How do I resolve a fencing dispute?

Step 1: Negotiate

The first step is to talk to your neighbour about the issue and do your best to reach an agreement. This is the easiest way to resolve the issue. If you need help negotiating with the neighbour, you can consider mediation.

If an agreement is reached, ensure it is in writing and includes details about the fencing work, position of the fence and how the costs are to be paid.

Step 2: Serve a fencing notice

If no agreement is reached, you can then serve a ‘fencing notice’ to your neighbour.

A fencing notice is a written notice that says what fencing work you want done and asks your neighbour to contribute to the cost. Your neighbour has one month to respond to the Fencing Notice. 

Step 3: Apply for a Fencing Order

If one month passes and the neighbour does not respond or no agreement is reached, the next step is to apply to the Local Court or the NSW Civil and Administrative Tribunal (NCAT) for a Fencing Order.

You cannot apply to either the Court or NCAT without first serving a valid fencing notice unless your application relates to:

• claiming half the costs for fencing work that was urgent and done without a Fencing Notice being served.
• challenging a claim for half the costs for urgent fencing work.

A Fencing Order is a decision made by NCAT or the Local Court about what fencing work must be done.

Applying to NCAT or the Local Court

It is generally easier to apply to NCAT because:

• Matters are usually listed quicker,
• There is conciliation before a hearing to try and negotiate,
• NCAT is not bound by rules of evidence and is designed for self-representation.

Important limits

However, if you or your neighbour live in a different state in Australia, NCAT may not be able to hear your matter.

Further, NCAT will not hear any matters about retaining walls unless there is supporting evidence that the wall is necessary for the support and maintenance of a dividing fence. You will need supporting evidence from a structural engineer.

If the retaining wall doesn’t support or maintain the dividing fence, the Dividing Fences Act 1991 (NSW) doesn’t apply.

What happens if there is urgent fencing work?

Under the Dividing Fences Act 1991 (NSW), if a damaged fence requires urgent repairs and it is not practicable to serve a fencing notice, you can repair the fence without first contacting your neighbour and then claim a contribution from them towards the costs of the fencing work.

If your neighbour disputes that the fencing work was urgent, they can apply to the NSW Civil and Administrative Tribunal (NCAT) or Local Court of NSW within a month of the work being completed to review the need for the work and how the costs of the work are paid.