Dividing fences
A dividing fence is the fence between your land and the land next door. The law starts from the position that both owners share the cost of it, and it gives you a way forward when your neighbour will not agree.
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.
The fence is only half the problem
Most people reading this have already had the conversation. The fence is rotten, or a tree came down on it, or a quote arrived that the neighbour says is too dear. The disagreement is rarely about whether a fence is needed. It is about what kind, and who pays for it.
The Dividing Fences Act 1991 (NSW) answers that in a particular way. It does not ask what fence you want. It asks what a sufficient dividing fence is for these two properties, and it starts from the position that adjoining owners share that cost equally. If you want something better than sufficient — a higher fence, a more expensive material, a feature the boundary does not need — the extra is generally yours to pay.
So the first useful thing is to separate the two questions. What would a sufficient fence between these properties be, and what are you actually proposing? Once those are apart, most fence disputes get smaller. Many of them stop.
The second useful thing is the fencing notice. It is a written notice to the adjoining owner setting out the fencing work proposed and the contribution you are asking for. It is not an escalation and it is not a court document. It is the step that puts the matter on a footing where, if agreement still does not come, a tribunal or a court can deal with it. NCAT says you can apply to it at least one month after the fencing notice has been served.
What the work actually is
Working out what is sufficient
What a sufficient dividing fence is for your two properties, given what they are used for and what is already there. This is the question the whole dispute turns on, and it is worth answering before anyone gets a quote.
Getting the notice right
A fencing notice that describes the work and the contribution clearly, goes to the right person and is served properly. A notice that is vague or served on the wrong owner wastes the month it is meant to start.
Correspondence that does not make it worse
You still have to live next door. We write to state your position and keep the matter open, not to win an argument in a letter. Most fence disputes settle at this point.
NCAT or the Local Court, if it gets there
Which one your matter belongs in, what the tribunal or court can actually order, what evidence it will want, and whether the cost of getting there is worth what you would gain. Sometimes the honest answer is that it is not.
Questions people ask first
Do I have to pay half?
The starting position under the Dividing Fences Act 1991 is that adjoining owners share the cost of a sufficient dividing fence equally. That is not the same as half of any fence. If what is proposed is better than sufficient, the owner who wants the better fence generally pays the extra. There are also situations where one owner carries more, for example where damage was that owner’s doing. Work out what sufficient means for your properties before you agree to a number.
My neighbour will not answer me at all. Is that the end of it?
No. Silence does not stop the process, and that is the point of the fencing notice. It is a written notice about the fencing work and the contribution sought, and it does not need your neighbour’s cooperation to be served. NCAT says an application can be made at least one month after the notice has been served. So the matter moves whether or not anyone writes back.
Can I just build the fence and send a bill?
That is the common mistake. Building first and asking afterwards usually leaves you without the protection the Act gives you, and you may end up carrying the whole cost of a fence that was never agreed. There are limited situations, such as urgent work, that are treated differently. Get advice before you engage anyone, not after the invoice arrives.
Who decides if we cannot agree — NCAT or the Local Court?
Both have a role under the Act, and which one fits depends on the matter. NCAT publishes its own guidance on dividing fences cases and says they are first listed for conciliation and hearing. The Local Court also deals with fencing matters. It is worth getting that choice right at the start rather than lodging in the wrong place.
What can a tribunal actually order?
More than people expect. NCAT states that in a dividing fences case it can make orders about what the fence should be made of, how high it should be, where it should be built, when it should be built, and how the cost should be divided between you and your neighbour. What it cannot do is make your neighbour pleasant about it.
The fence is not on the boundary. Does that matter?
It can matter a great deal, and it is a different question from who pays. A fence sitting off the line does not move the boundary, but over a long period arguments can be built on it. If you think the fence and the boundary are not the same line, read boundaries and encroachment as well, because you may have two problems rather than one.
A tree fell on the fence. Whose problem is that?
Possibly both Acts at once. The fence itself is dealt with under the Dividing Fences Act 1991. A claim about the tree that damaged it, or about a tree that is likely to damage something next, is dealt with under the Trees (Disputes Between Neighbours) Act 2006 by the Land and Environment Court. See trees and branches.
What to have ready
Nearly every early question about a fence is answered by documents and photographs rather than by what either of you remembers saying.
- Photographs of the fence as it is now, including the damaged parts.
- Any quote you have obtained, and what it actually covers.
- Anything already put in writing between you — a note, a text message, an email.
- Your title documents, and the deposited plan if you have it.
- Whether a fencing notice has been served by either of you, and the date.
- What the two properties are used for, because that bears on what is sufficient.
- Whether the fence forms part of a swimming pool barrier, which is treated differently.