It is not uncommon for adjoining land owners, including owners corporations, to be drawn into disputes involving a fence.

This can include damage to common property such as a wall, driveway or footpath, a neighbouring lot owner’s property or a retaining wall.

These issues are primarily dealt with under the Dividing Fences Act 1991 (“DFA”).

Disputes involving a dividing fence under the DFA

A dispute involving a “dividing fence” is commonly a disagreement between adjoining land owners about an existing fence or proposed fence that divides neighbouring land on the common boundary between the two properties.

From 1 January 2014, an owner of land can apply to the NSW Civil and Administrative Tribunal (“NCAT”) under the DFA to make orders and resolve a dispute about a dividing fence if the land owner and their neighbour cannot agree on the fencing work.

What steps should I take if I have a dividing fence dispute under the DFA?

Step 1: Fencing Notice

You need to complete a Fencing Notice. Here is a link to a sample Fencing Notice: http://www.lawassist.lawaccess.nsw.gov.au/agdbasev7wr/_assets/lawassist/m729327l771017/sample%20fencing%20notice%201%20new.pdf

You should ensure that your Fencing Notice includes the following details:

• your address

• your neighbour’s address

• where you want to do the fencing work, for example, on the boundary line (or somewhere else if it is not practical to build on the boundary line)

• a description of the type of fencing work to be done, including the length and height of the fence and the materials to be used

• who will do the work

• the date the work will start

• the date the work will be finished by

• the estimated cost

• how the cost is to be split (usually equally).

Step 2:  Serve your Fencing Notice

After you have completed your Fencing Notice, you need to serve it on (give it to) the owner of the adjoining property.

You can serve the Fencing Notice on the owner either:

• personally (by handing it to them), or

• by posting it to their usual or last known residential or business address.

Step 3: Application to NCAT

If you and your neighbour are unable to reach an agreement one (1) month after the Fencing Notice is sent, you can lodge an application with NCAT.

Here is a link to NCAT’s form: http://www.cc.ncat.nsw.gov.au/biz_res/cttt/pdfs/Forms/Dividing_fences_application_form.pdf

NCAT will send you and your neighbour a Notice of Conciliation and Hearing with the date, time and location at which the matter will be heard. According to NCAT’s website, dividing fence applications are listed for hearing within 4 weeks.

Step 4: Conciliation

When you arrive at NCAT for the hearing you will be asked to attempt conciliation. Conciliation is an alternative dispute resolution process used by NCAT to help parties settle the dispute.

Step 5: Hearing

If the parties do not settle the dispute about the dividing fence, the matter will be referred to hearing and will be heard and determined by a Tribunal Member. However, if the parties reach agreement in conciliation, the agreement is formalised into an NCAT order. Otherwise the parties will present their evidence to the Tribunal Member who will then make a determination and final orders.

Step 6: Final orders

Final orders made by NCAT are binding and enforceable.

What type of orders can be made by NCAT?

NCAT has jurisdiction under the Dividing Fences Act 1991 to make orders about dividing fence disputes. The order can cover:

• What the fence should be made of
• How high the fence should be
• Where the fence should be built
• When the fence should be built
• How the costs of the fencing work should be divided between you and your neighbour.

Enforcing the decision

After Fencing Orders are made, both neighbours should follow the orders. If either neighbour does not follow the orders, there are things that can be done to enforce the decision.

Appeal from NCAT

If you are unhappy with a decision of NCAT you may be able to appeal to the appeals panel of NCAT. In some cases you will have to seek leave (permission) to appeal.

The appeal must be filed with NCAT:

• within 28 days after you were notified of the decision or

• within 28 days after you were given reasons for the decision,

whichever is later.

Warning

Whilst the process may appear simple, there is a tendency for complex issues to arise. Therefore, it is recommended that you obtain legal advice so that you know that you have put your best case forward the first time.

If you have any queries, please contact us on (02) 8324 7565 or email us at enquiries@pobilawyers.com

Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.