How to raise a fence problem with your neighbour
The first conversation about a fence decides how the next six months go. This guide is about having it well, and about what to do with what comes out of it.
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.
Work out what a sufficient dividing fence would be for your two properties before you get a quote. The Dividing Fences Act 1991 (NSW) starts from adjoining owners sharing that cost equally, and an owner who wants better than sufficient generally pays the difference.
Talk first, then write it down. A short note confirming what you agreed is not a hostile act, and it is the thing that matters if the agreement later falls apart.
If talking does not work, the next step is a fencing notice. NCAT states that you can apply to it at least one month after the fencing notice has been served.
Before you knock on the door
Two pieces of preparation change the conversation completely, and both take less than an hour.
The first is deciding what you are actually asking for. Under the Dividing Fences Act 1991 (NSW) the question is not what fence you would like. It is what a sufficient dividing fence would be for these two properties. The starting position is that adjoining owners share that cost equally, and an owner who wants a fence of a higher standard than sufficient generally pays the extra themselves. If you go next door asking for a contribution to something better than sufficient, you are asking for something the Act does not give you, and a neighbour who knows that will say so.
The second is knowing roughly what it costs. A written quote makes the conversation concrete. Without one, you are asking someone to agree in principle to an unknown number, which is a reasonable thing for them to refuse.
- Look at what the fence has to do. Two ordinary suburban back yards are a different question from a yard holding livestock or enclosing a pool.
- Photograph the fence as it is now, including the damaged sections, before anything is touched.
- Get at least one written quote, and read what it actually covers.
- Work out whether what you want is sufficient, or better than sufficient. Be honest with yourself about this one.
- Check whether the fence forms part of a swimming pool barrier, which is treated differently.
If you think the fence may not be on the boundary, stop and read boundaries and encroachment first. Building a fence while the line is genuinely in dispute usually creates a second problem on top of the first.
The conversation itself
Go in person if you safely can. A note through the door is easy to ignore and easy to read in the worst possible tone. A conversation at the fence is harder to escalate.
Lead with the problem rather than the solution. The palings along the back have gone and I think the whole run needs doing invites a discussion. I have booked someone for Tuesday and your share is this much invites a refusal.
Expect that they may need time, and say so. Most people cannot agree to a substantial expense standing in their driveway, and pressing for an answer on the spot usually produces the wrong one. Offer to leave the quote with them and come back in a week.
If the relationship is already poor, or you do not feel safe, do not force a face-to-face conversation. Write instead, keep it short and factual, and get advice about the next step.
Do not start with the law. Mentioning tribunals in the first conversation tells your neighbour that you have already decided how this ends, and it makes agreement less likely rather than more.
Write down what was agreed
This is the step people skip and regret. Whatever you agree, put it in a short note or an email the same day, and keep a copy.
It is not a legal document and it does not need to read like one. Two short paragraphs confirming what was said is enough, and it can be friendly. What it does is fix the detail while both of you still remember it the same way.
If nothing was agreed, record that too, along with the date you spoke and what each of you said. If the matter later goes further, the first question will be what attempts were made to resolve it, and a contemporaneous note answers that far better than memory.
- What work is to be done, and where.
- Who is arranging it, and roughly when.
- What each of you is contributing.
- Anything either of you is paying for separately, such as an upgrade one of you wanted.
- The date of the conversation.
If talking has not worked: the fencing notice
A fencing notice is a written notice to the adjoining owner about the fencing work proposed and the contribution you are seeking. It is provided for by the Dividing Fences Act 1991 (NSW), and it is the step that moves the matter forward whether or not your neighbour is cooperating.
People treat it as a declaration of war. It is closer to the opposite: it is a formal way of setting out what you want to do and what you are asking for, and it gives your neighbour a defined opportunity to respond. Legal Aid NSW publishes a step-by-step guide to preparing one.
It also starts the clock. NCAT states that you can apply to it at least one month after the fencing notice has been served, so serving a notice is what creates the option of a decision if agreement never comes. Serving it on the right person, and properly, is what makes that month count.
A fencing notice does not oblige you to apply anywhere. A good many are served, read, and followed by an agreement in the next fortnight.
What not to do
Three things reliably make a fence dispute worse, and all three are common.
- Do not build first and invoice afterwards. Going ahead without agreement and without a notice usually leaves you outside the protection the Act gives you, and you may end up carrying the whole cost.
- Do not put it in writing in anger. Every message you send is a document somebody may read later, including a tribunal member. Write it, leave it overnight, and send the version you would be comfortable having read aloud.
- Do not let it become about everything else. Fence disputes attract every other grievance between two households. Keep the fence separate, because a narrow disagreement can be settled and a general one usually cannot.
If you feel unsafe, or there has been threatening behaviour, that is not a fencing problem. Get advice about that first, and contact the police if anyone is at risk.
What usually happens
Prepare
Photograph the fence, get a written quote, and decide what a sufficient fence would be for these two properties as opposed to what you would prefer.
Talk
In person if it is safe. Raise the problem rather than presenting a decision, and give them time to think about the money.
Write it down
A short note or email the same day confirming what was agreed, or recording that nothing was. Keep a copy.
Serve a fencing notice
If agreement has not come, a fencing notice sets out the work proposed and the contribution sought. Legal Aid NSW publishes a step-by-step guide to preparing one.
Apply, if it is still not resolved
NCAT states that you can apply at least one month after the notice has been served. Dividing fences matters are first listed for conciliation and hearing.
Common questions
Can I send a fencing notice by email?
How a notice is given matters, because the month that follows depends on it having been served properly. The Act deals with service, and Legal Aid NSW’s step-by-step guide covers how to prepare and give one. If there is any doubt about the correct owner or the correct address, get advice before you send it rather than after.
My neighbour is a tenant, not the owner.
Fencing obligations under the Act fall on owners rather than on the people living there. If the property next door is rented, the notice needs to reach the owner, and identifying them correctly is worth doing properly. The person who answers the door may be perfectly willing and have no power to agree.
They agreed and then changed their mind.
This is exactly what the written note is for. If you recorded the agreement at the time, you have something to point to. If they will not proceed, the fencing notice route is still open and the earlier agreement is useful context rather than a dead end.
The fence is falling down now and someone could be hurt.
Urgent situations are treated differently from ordinary fencing work, and Legal Aid NSW publishes information on urgent fencing work. If there is an immediate danger, deal with the danger first and get advice quickly, because what you do in the next few days can affect who pays for it.
How long does the whole thing take?
Most fence disputes are settled in the conversation or shortly after a notice, so a few weeks. Where it goes to NCAT it takes longer, and NCAT states that matters are first listed for conciliation and hearing, with a contested hearing on a later date if the case is not resolved. Check current timeframes with NCAT rather than relying on anyone’s estimate.
Related
Before you serve anything
If a notice has already been served on you, or you are about to serve one, the wording and the service are worth getting right. A notice that has to be done again costs you the month it was meant to start.