Boundaries and encroachment
A boundary dispute is an evidence problem before it is a legal one. Almost every one of them is settled or lost on whether anybody has established where the line actually is.
General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.
Start with the plan, not the argument
Boundary disputes have a particular shape. Two people are each completely certain, each has lived with the same fence for years, and neither has anything that actually establishes where the line is. Until somebody does, there is nothing to argue about in a useful sense, because no adviser and no court can decide the case on two confident recollections.
So the order of work is fixed. The title and the registered plan define the boundary. A registered surveyor puts that plan onto the ground and marks it. Everything else — the fence, the retaining wall, the carport, the garden bed, the driveway that has always been used — is evidence about what people have done, not about where the line is.
Once the line is located, the question becomes what to do about whatever sits across it. If a building crosses, the Encroachment of Buildings Act 1922 (NSW) is the statute, and it is more flexible than most people fear. It defines encroachment to include an overhanging part as well as an intrusion into the soil, and it allows a court to make the orders it thinks just. Those can include compensation to the owner whose land is encroached on, or the transfer or grant of an interest in the land to the encroaching owner. Demolition is not the only outcome available.
A related problem comes up constantly and has its own answer: you need to be on your neighbour’s land to repair or build something on yours, and they will not have you there. The Access to Neighbouring Land Act 2000 (NSW) allows a court to make an access order permitting that, after notice to the people affected. It is a real option where a neighbour simply refuses.
What the work actually is
Reading the title and the plan
What your title and the registered plan actually say about the parcel, and what they do not. This is where the boundary comes from, and a surprising number of disputes end once someone reads them properly.
Getting a survey done, and used
Advising when an identification survey by a registered surveyor is worth the cost, and then using it. A survey that sits in a drawer settles nothing; a survey put to the neighbour with a clear proposal often does.
Encroachment, and the realistic outcome
Where a structure crosses the line, what a court is actually likely to do under the Encroachment of Buildings Act 1922, and whether a negotiated easement, transfer or payment gets you there faster and for less.
Access to a neighbour's land
Where you cannot do the work without getting next door, whether an access order under the Access to Neighbouring Land Act 2000 is available, and what the application has to show.
Questions people ask first
Do I really need a survey?
For a genuine boundary dispute, usually yes. An identification survey by a registered surveyor is the evidence that establishes where the line runs, and without it you are asking someone to decide between two beliefs. It costs money, and it is normally far less than the cost of arguing about the line for a year and then getting one anyway.
The fence has been there for thirty years. Is that the boundary now?
Not by itself. A fence is a structure, not a boundary, and long use does not simply convert one into the other. Arguments do exist that turn on long possession, but they are technical, they are fact-heavy and they are not the ordinary outcome. Do not assume the fence line is safe, in either direction, without advice.
My neighbour's wall is over the line. Will it have to come down?
Not necessarily, and often not. Under the Encroachment of Buildings Act 1922 a court may make such orders as it thinks just, which can include compensation, or the transfer or grant of an interest in the land to the encroaching owner. Removal is one possible outcome among several, and the extent of the encroachment and how it came about both matter.
Their gutter overhangs my land. Is that an encroachment?
It can be. The Act defines encroachment to include encroachment by overhang of a part of a building, not only by intrusion into the soil. Whether it is worth doing anything about a gutter is a separate and more practical question, and the answer is frequently no.
I need to get onto their land to fix my wall and they have said no.
That is what the Access to Neighbouring Land Act 2000 (NSW) is for. It allows a court to make an access order permitting access to adjoining land to carry out work, and notice has to be given to the owner and to others who may be affected. Ask before you apply, and keep a record of asking, because that is the first thing you will be asked.
Can we just agree on a new boundary between ourselves?
Owners can reach an agreement, and a written one is much better than a handshake, but be careful about what it achieves. A private agreement about where a fence goes does not alter the registered boundary. If you want the line itself to change, that is a conveyancing step and it needs to be done properly or it will resurface when either property is sold.
This is really about the fence. Is it the same dispute?
It may be two. Who pays for a dividing fence is dealt with under the Dividing Fences Act 1991 and goes to NCAT or the Local Court — see dividing fences. Where the line runs is a different question with different evidence, and putting a fence up while the line is in dispute usually makes things harder.
What to have ready
A boundary matter is decided on documents and measurements. Bring what you have, even if it is incomplete.
- Your title documents and the deposited plan for the land.
- Any survey ever done on either property, however old.
- A recent council rates notice, which identifies the parcel.
- Photographs of the fence, wall or structure in dispute, from both sides if you can.
- Any development consent or building approval for the structure you say crosses the line.
- When the structure went up, and who built it, if you know.
- Any written agreement or correspondence with the neighbour or a previous owner.
- Whether either property has been sold or subdivided recently.