• If a building is built across a boundary you will need an exact boundary location to resolve the dispute. 
• You should contact your local council if the encroachment is the result of failing to follow an approved building plan.
• Council will generally order compliance with the approved plan meaning the encroachment will need to be removed or altered.
• Either of the owners can apply to the Registrar General for a boundary determination.
• If the Registrar General cannot assist you can ask the Land and Environment Court to make an order to determine, mark and record the exact boundary location.
• If it is determined that a building has been built across a boundary you or your neighbour can apply for an order requesting:
• compensation to the encroached owner;
• the grant of an interest like an easement;
• transfer or lease to the encroaching owner; or
• removal of the building.
• In making the order the court will take into consideration:
• who made the application;
• the circumstances of the encroachment;
• the situation and the value of the land;
• the character and use of the building; and
• any loss or damage that may be incurred by either owner.

• If a building is built across a boundary you will need an exact boundary location to resolve the dispute. 
• You should contact your local council if the encroachment is the result of failing to follow an approved building plan.
• Council will generally order compliance with the approved plan meaning the encroachment will need to be removed or altered.
• Either of the owners can apply to the Registrar General at the Land Registry Service for a boundary determination.
• If the Registrar General cannot assist you can apply to the Land and Environment Court to make an order to determine, mark and record the exact boundary location.

If it is determined that a building has been built across a boundary you or your neighbour can apply for an order requesting:

1. compensation to the encroached owner;
2. the grant of an interest like an easement;
3. transfer or lease to the encroaching owner; or
4. removal of the building.

• In making the order the court will take into consideration:

1. who made the application;
2. the circumstances of the encroachment;
3. the situation and the value of the land;
4. the character and use of the building; and
5. any loss or damage that may be incurred by either owner.

• You do not always need to use a fencing notice. You should first attempt to discuss the issue with your neighbour and reach an agreement without using a more formal fencing notice. If you can both agree about the work that needs to be done and how the costs will be shared then there is no need to use a fencing notice. 
• Your agreement would be a verbal contract and would be governed by principles of contract law rather than by the written law relating to fencing in your state or territory. 
• If you have reached a verbal agreement and are worried that your neighbour is not intending to comply with that agreement you can find more information in our Contract Law topic.

• Generally a residential or retail tenant is not required to pay for any part of fencing works. 
• If your tenant falls under one of the categories specified in the written law for your state or territory and has a large proportion of their lease remaining they may be required to pay some contribution. This is usually only for long-term commercial tenants.
• If your tenant does fall under one of the relevant categories you must still provide them with a fencing notice as required under the written law. 

• In NSW certain Crown land (government owned land) is exempt from sharing the costs of fencing under the written law. Sometimes the NSW Government may elect to assist with payment but they are not required to do so under the law.
• Local councils are also not considered an 'owner' in situations where they manage public areas such as a park or playground. They will not be required to contribute to your fencing costs if your fence divides your private land from the council managed land.

Question

I've just bought a block of land in a new housing estate. I want to put up a fence at my own cost. They aren't there during the day and there's currently no fence as it's a new estate. I'm sure they wouldn't mind. Can I enter my neighbour's land to put up the fence?

Answer 

• No. If you enter your neighbours land without permission you will be trespassing.
• You may be able to enter your neighbours' land to undertake fencing wok without asking them first if:
• urgent fencing work is required;
• there is an agreement about the fencing work between you and your neighbour; or
• you have a fencing order form a court or tribunal.

Question

I've just inherited a farming property near Bega in NSW and I'm having the boundaries re-done with the hope of sub-dividing or selling part of the property. One of our neighbours has a shearer's quarters that they've been using for years and it is on part of my property. It has been there since my dad owned the land. That's over 20 years. Is there anything I can do?

Answer 

• If the building or encroachment has been in existence for more than 12 years then the principle of adverse possession may apply. The principle of adverse possession states that if a person has occupied all or part of a parcel of land that does not belong to them for a long time that person may be able to claim ownership of that land.
• In NSW you can only claim adverse possession over Torrens Title properties and your claim must be for the entire piece of land. Adverse possession is not available for any parcel of Crown Land.
• You may wish to discuss your plans to sell with your neighbour and see what they think. You might find that they already know that the shearer's shed is on your land and would be happy to return that land to you by demolishing the shed. Alternatively they may ask you to sell them a portion of your land and move your boundaries so that the shearing shed is entirely on land they own. Given that they are not claiming possession over a whole parcel of land it will be difficult for them to prove adverse possession. 
• However the law regarding adverse possession is complex and highly technical. It is recommended that you seek legal advice in relation to any potential claims your neighbour may have so that you fully understand your legal position before you begin negotiating.

Question

I want to establish a bit of a garden between my house and the neighbour's house for privacy. It's a steep and narrow block of land and I would need to build a retaining wall. How do I go about this? Do I have to get permission?

Answer 

• Retaining walls are structures that support excavated or filled earth on a property in order to prevent it eroding onto an adjoining property. In many cases you will require development consent for the construction of a retaining wall. 
• Retaining walls may sometimes be regarded as 'Complying Development' for which no development application is required. This is only if the wall meets certain conditions relating to its height, distance from any boundary and distance from any significant structure. Whether development consent is required will depend on the nature of the retaining wall you wish to build.
• You should contact your local council to discuss whether the retaining wall is a complying development. If it is not a complying development the council can outline the process for obtaining development approval.
• You may be able to seek financial contribution from a neighbour for any work to a retaining wall that is required because the wall acts as a foundation for a dividing fence. This will depend on the purpose of your retaining wall and the characteristics of your particular parcel of land. You should make an effort to discuss any contributions with your neighbour.
• If you are unable to reach an agreement you may like to consider contacting a lawyer to discuss your rights and what the law in your state or territory says about the percentages that should be paid by you and your neighbour.

Question

I live in New South Wales. I'm doing some landscaping and want to remove some of the soil that sits near our boundary to make a small dam. Can I do that?

Answer 

• Under the law in NSW a person has a duty of care (a legal responsibility) not to do anything on or in relation to land that removes the support to any other land. This can include interfering with the soil surface, top soil, the subsoil, any part that is reclaimed land and even the water below.
• You may be liable for damages if you undertake an activity which:
• causes harm to the supported land;
• causes the supported land and its structures to become unsafe; or
• prevents the supported land from safely supporting any structure that someone may wish to build on it in the foreseeable future.
• The impact that your removal of soil from the boundary will have on any supported land depends on the characteristics of your land such as the slope, type of soil and any nearby structures.
• A surveyor can advise you on the likely impact of your plans and whether council consent is required for the work you are planning.
• You can enter into an agreement with your neighbour that creates an easement (a legal right of access) for the removal of supporting land. You should discuss any concerns or the development of an easement with a lawyer. 
• If you do cause any damage to property by taking soil from the boundary you can be at risk of substantial liability. Before you go ahead it is recommended that you get professional advice. 

Question

The wooden fence between my property and my neighbour’s place has been deteriorating for years. The panels near their vegetable garden are rotting and nearly ready to fall out. I am worried that my toddler will be able to get into their yard. They have a small fishpond but it is big enough for a child to drown in. We talked about this ages ago and they agreed that we would share the costs of replacing the fence between us. We even agreed that we would get a colorbond fence rather than wood so we could save on maintenance costs. However whenever I talk to them about it they say they can’t afford it just now and they will get back to me. In the meantime my little boy is crawling and will soon be walking. I need the fence to be fixed before then. I am worried that I am going to have to pay for it all myself. I am in NSW.

Answer 

• If you have an agreement with your neighbour about how to share costs you should get that agreement in writing. 
• If you find that you are no longer in agreement about the details you can initiate mediation at a Community Justice Centre. The mediator will help you explain your concerns to your neighbours, understand what their concerns and difficulties in the situation are and develop an agreement that you can both live with.
• If mediation fails and you decide to pursue legal proceedings about this fence you may get an order from the NSW Civil and Administrative Tribunal (NCAT) about how to share costs. That order will also be provided to you in writing. 
• These agreements will help you establish that your neighbour agreed to pay their share and has either breached a contract or is in breach of the written law concerning fence disputes.
• In the event that the adjoining landowner does not pay their share of the costs and you end up paying for it yourself, a written agreement will allow you to pursue repayment of the money through a debt collection action.