Introduction

Disputes over a dividing fence are a common source of friction for neighbours in New South Wales (NSW). Disagreements can arise over fence height, placement, cost, or maintenance, and are governed by the Dividing Fences Act 1991 (NSW), which provides a clear legal pathway for resolving these issues.

This guide provides a practical overview of the legal process for resolving a fence dispute. It outlines the necessary steps, from talking to your neighbour and serving a Fencing Notice to seeking mediation or applying for a Fencing Order from the NSW Civil and Administrative Tribunal (NCAT) or the Local Court.

Starting the Resolution Process by Talking to Your Neighbour

Reaching a Written Agreement

The most effective first step in resolving a fence dispute is to talk to your neighbour. An open and polite conversation can often prevent the issue from escalating, saving time and money. During this discussion, you should discuss the required fencing work, whether it involves repairs to an existing fence or constructing a new one.

If you can come to an understanding, it is crucial to document this agreement in writing. This documentation is vital because a verbal agreement can be difficult to prove later if a disagreement arises. Both you and your neighbour should sign the written agreement, and each of you should keep a copy for your records.

Your written agreement should detail all aspects of the fencing work, including:

Agreement Component	Description
Boundary Line Position	The agreed-upon position of the boundary line where the fence will be built.
Fence Specifications	The specific type of fence, including its height, materials, and colour.
Cost & Contribution	The total estimated cost of the work and the agreed-upon contribution from each neighbour.
Removal of Existing Fence	Arrangements for removing any existing fence.
Completion Timeline	A timeline for when the work will be completed.

Checking with the Local Council

After reaching a preliminary agreement with your neighbour, it would be best to check with your local council before you begin any work. While councils do not enforce the Dividing Fences Act 1991 (NSW), they have rules and regulations that could impact your plans. These requirements can vary significantly between different local government areas.

Failing to comply with council regulations could result in serious consequences, such as being ordered to remove or alter a newly built fence at your expense. To avoid such issues, you can check your local council’s website or contact their planning department to confirm any specific requirements for your area.

Common council regulations to be aware of include:

• Restrictions on fence height and the types of materials that can be used
• Whether a permit is required, particularly for fences that are unusually high or located in heritage conservation areas
• Any planning overlays or setback rules that might apply to your property

Taking Formal Steps by Serving a Fencing Notice

What a Fencing Notice Must Include

If informal discussions with your neighbour fail to produce an agreement, the following formal step under the Dividing Fences Act 1991 (NSW) is to serve a Fencing Notice. This written document formally outlines your proposal for the fencing work and serves as a mandatory prerequisite before you can apply to NCAT or the Local Court.

A Fencing Notice must be in writing to be valid and clearly specify several key details. These requirements ensure your neighbour has all the necessary information to consider your proposal properly.

The notice should include:

Required Information	Details
Boundary Line Location	The location of the boundary line where the fencing work is proposed to be carried out.
Description of Work	A description of the fencing work, detailing the type of fence, its height, and the materials to be used.
Estimated Cost	The estimated cost of the work should be supported by at least one written quote from a contractor.
Proposed Contribution	The proposed contribution from each adjoining owner is typically an equal 50/50 split for a sufficient dividing fence.

When delivering the notice, you have two options:

• Deliver it to your neighbour personally
• Send it by post to their residential or business address

The One Month After Serving the Notice

After you have formally served the Fencing Notice, your neighbour has a period of one month to respond. This timeframe is a critical part of the process outlined in the Dividing Fences Act 1991 (NSW), as it provides a final opportunity for the dispute to be resolved through agreement before any legal action is taken.

During this one month, your neighbour can:

• Agree to your proposal
• Suggest amendments
• Raise objections

If you can reach an agreement, it should be documented in writing and signed by both parties. However, you can escalate the matter if your neighbour does not respond within the month or still cannot agree on the fencing work. Only after this one-month period can you apply to NCAT or the Local Court for a Fencing Order.

Escalating the Dispute Through Mediation & Fencing Orders

Using Mediation to Find a Solution

Mediation often becomes the next logical step if the neighbour cannot reach an agreement within one month of a Fencing Notice being served on you and your neighbour. This process offers a less stressful and cost-effective alternative to formal legal action.

Community Justice Centres (CJCs) in New South Wales provide free and confidential mediation services to help resolve neighbourhood disputes, including those about dividing fences. During this process, a neutral and impartial mediator facilitates a discussion between both parties to find a mutually acceptable solution.

It is important to note that while CJCs have been a valuable resource, they are scheduled to close on June 30, 2025. After this date, neighbours may need to:

• Seek private mediation services
• Rely more heavily on the conciliation process offered by tribunals

Applying for a Fencing Order from NCAT & the Local Court

If mediation fails or your neighbour refuses to participate, you can escalate the matter by applying for a Fencing Order. This application can be made to either:

• NCAT
• The Local Court

Both bodies have the authority under the Dividing Fences Act 1991 (NSW) to make legally binding decisions to resolve fence disputes. NCAT is often the preferred venue, as its process is typically less formal and more efficient.

To apply for a Fencing Order, you must have already served a Fencing Notice and waited at least one month. Your application should be supported by evidence, such as:

• A copy of the notice
• Quotes for the fencing work
• Photographs of the current situation

Once an application is made, NCAT will typically schedule a conciliation and hearing—a process also common for a strata dispute in NCAT—to attempt resolution before making a final determination.

A Fencing Order from NCAT or the Local Court can provide a definitive resolution by determining:

Determination Area	Scope of the Order
Fence Location	The boundary line or other line where the fencing work should be done.
Fence Specifications	The specific type of fence to be built, including its height and the materials used.
Timeline for Work	The timeframe within which the fencing work must be completed.
Cost Allocation	How the costs of the work will be divided between you and your neighbour.
Necessity of Fence	Whether a dividing fence is required in the circumstances.

Determining Who Pays for Fencing Work

The General Rule of Equal Cost Sharing

Under the Dividing Fences Act 1991 (NSW), adjoining property owners must share the cost of fencing work equally. This fundamental principle means that for a standard dividing fence, you and your neighbour are each responsible for 50% of the price, whether for construction, replacement, or repair.

This shared responsibility applies even if one neighbour is more eager to have the fence built or repaired than the other. The law requires a “sufficient dividing fence,” which adequately serves its purpose in the local area but is not necessarily the most expensive option available.

When determining what constitutes a sufficient fence, several factors are considered:

Factor	Consideration
Existing Fence	The condition of any existing fence.
Land Use	How the adjoining land is being used.
Privacy	Privacy concerns of both parties.
Local Standard	The typical standard of fences in the neighbourhood.

Common Exceptions to the 50/50 Rule

While equal cost sharing is the standard approach, several important exceptions exist where one neighbour may be required to pay more than half the cost of fencing work. These situations typically arise when one party has specific needs or is responsible for the damage.

Common exceptions to the equal sharing rule include:

Exception	Description
Upgrading to a Higher Standard	If one owner desires a fence of a higher standard than what is considered sufficient, they are responsible for paying the additional cost beyond their 50% share.
Damage Caused by Negligence	When a deliberate or negligent act damages a fence, the responsible neighbour is liable for the entire restoration cost to a reasonable standard.
Unreasonable Conduct	NCAT or the Local Court may order an unequal division of costs if one party has been unreasonable or will receive a significantly greater benefit from the fence.
Swimming Pool Requirements	The pool owner is responsible for any additional costs to ensure that the dividing fence complies with swimming pool safety requirements.

Addressing Complex Boundary & Fence Issues

When the Boundary Line is the Dispute

Occasionally, a fence dispute is not about the fence itself, but about the precise location of the common boundary line. If you and your neighbour cannot agree on where the boundary is, the first step is to engage a registered surveyor to define the property line professionally. An accurate survey provides objective evidence that can often resolve disagreements before escalating.

If two independent surveyors disagree or your neighbour disputes the findings, a formal process is available under the Real Property Act 1900 (NSW). An affected landowner can apply to the Registrar General to formally determine the title boundary. This application is lodged through NSW Land Registry Services and must be supported by evidence, typically a report from a registered surveyor.

Once an application is lodged, the Registrar General will:

• Notify the adjoining property owner of the application
• Invite the adjacent owner to make a written submission
• Review all available evidence to determine the position of the boundary

Should you or your neighbour be dissatisfied with the Registrar General’s determination? There is a right to appeal the decision to the Land and Environment Court within 28 days of receiving the notice.

Disputes Involving Retaining Walls

Disputes involving a retaining wall are often more complex because these structures are generally not covered by the Dividing Fences Act 1991 (NSW). A retaining wall is typically built to provide structural support to land at a different level than the adjoining property, rather than simply marking a boundary.

The primary exception is when a retaining wall is essential for supporting and maintaining the dividing fence itself. In such cases, the retaining wall may be considered part of the fence, and the provisions of the Act can apply. However, the dispute falls outside the standard fencing laws if the wall’s primary purpose is to support the land.

Given this legal distinction, determining responsibility for a retaining wall can be challenging. It often depends on various factors, including why the wall is necessary and what is reasonable. It would be best for you to obtain a report from a structural engineer to explain the wall’s purpose before proceeding with any action. Due to the complexity of these issues, seeking legal advice from a lawyer experienced in building and construction law is strongly recommended.

Conclusion

Resolving a fence dispute in New South Wales follows a structured process under the Dividing Fences Act 1991 (NSW), beginning with direct communication and progressing to a formal Fencing Notice if an agreement isn’t reached. Should the dispute continue, mediation or an application to NCAT or the Local Court provides a clear path to a legally binding resolution on fencing work and cost-sharing.

Navigating these legal requirements, which can fall under general property law or specific strata law, can be challenging, particularly for complex boundary or retaining wall issues. For trusted expertise, contact the property and strata dispute lawyers at PBL Law Group today to ensure your rights are protected and achieve a practical, cost-effective outcome.

Frequently Asked Questions (FAQ)