Your fence is not your boundary: when a neighbour pulls it down

Few things sour a neighbourly relationship faster than a fence. And one of the most common and most costly mistakes a property owner can make is to assume that the fence marks the legal boundary and that whatever is on “their” side of the survey line is theirs to deal with as they please. A recent decision of the New South Wales Civil and Administrative Tribunal (NCAT), Wijesena v Centex Sydney Pty Ltd [2025] NSWCATCD 193, shows what can go wrong when a neighbour acts on that assumption and how the law treats a long-standing fence that does not sit exactly on the boundary.

The case is a useful guide for any homeowner in the Sutherland Shire and beyond who shares a fence with a neighbour, especially where a survey reveals that a driveway, fence or wall is a little over the line.

Dividing fences in New South Wales

Disputes between neighbours about a shared, or “dividing”, fence are governed in New South Wales by the Dividing Fences Act 1991 (NSW). The Act sets up a structured process. As a starting point, adjoining owners generally share the cost of a “sufficient dividing fence", and what is “sufficient” depends on all the circumstances, including the existing fence, how the properties are used, privacy, and the kind of fence usual in the area.

Crucially, neighbours are expected to talk first. An owner who wants fencing work done serves a written “fencing notice” under section 11 of the Act, setting out the proposed line, the type of work and the estimated cost. If the neighbours cannot agree within a month, either of them can apply to NCAT (or the Local Court) for orders. NCAT is a tribunal – a less formal, lower-cost forum than a court and it is not bound by the strict rules of evidence.

The single most important point in this case is one that surprises many people: under section 14 of the Act, the Tribunal can order a dividing fence to be built on a line other than the legal boundary. And, importantly, the Act says that occupation of land on either side of a fence built off the boundary is not treated as adverse possession and does not affect who actually owns the land. In other words, where a fence has sat in a particular spot for decades, the Tribunal can put it back there without that fence line changing the legal ownership of the ground beneath it.

The facts: a developer, a driveway and a fence removed overnight

The applicants owned a home in Northbridge, which they had bought in 2005. The house, garage and a driveway running along the northern side of the home had stood in place for around 80 years. A dividing fence had long run along the northern edge of that driveway, separating the home from the neighbouring property.

The neighbouring land was owned by a developer, Centex Sydney Pty Ltd, which was building a new dwelling. In about November 2024, the developer removed the dividing fence without the homeowners’ consent and without serving any fencing notice and erected temporary fencing on the homeowners’ driveway. Its justification was a survey showing that the driveway encroached onto the developer’s land by about 85 millimetres near the front, widening to about 220 millimetres further along. The developer also built a concrete block retaining wall and paling fence at the rear, which itself encroached about 10 millimetres onto the homeowners’ land.

The consequences for the homeowners were immediate and practical. The temporary fencing left their car trapped in the garage for more than two months, and the gate across the driveway which had provided privacy and security was left tied to the temporary fence and no longer functional.

The homeowners served a fencing notice (through their solicitors) and, when the dispute was not resolved, applied to NCAT for orders requiring the developer to replace the dividing fence along its original line, to remove the temporary fencing, and to reinstate the gate.

The issues and the arguments

Three questions arose. First, was the application brought in time? The Tribunal had to work through the interaction between the one-month negotiation period under the Act and a 28-day filing rule. It accepted the “without prejudice” solicitor’s letter enclosing the fencing notice into evidence (it is not bound by the usual evidence rules), found the notice had been served in early February 2025, and concluded the application filed in March was within time. To remove any doubt, it noted it would in any event have extended time.

Second, was there a “sufficient dividing fence”? Plainly not: the old fence had been removed, and only temporary fencing remained. That gave the Tribunal jurisdiction to order fencing work.

Third and this was the real contest on what line should the new fence be built? The homeowners argued it should go back exactly where the old fence had stood for some 80 years, along the edge of the driveway. The developer argued it should be built on the true surveyed boundary, which would narrow the driveway from about 2.8 metres to 2.6 metres over a 21.86-metre stretch. The homeowners’ evidence was that this narrowing would make the driveway unsafe to use in practice, even if a car could technically still squeeze through.

The Tribunal’s decision

The Tribunal sided with the homeowners. It ordered the developer, at its own cost, to erect a replacement dividing fence along the same line where the previous fence had stood for around 80 years that is, along the edge of the driveway, even though that line sat partly on the developer’s land connecting to the retaining wall at the rear. The fence was to be a lapped and capped paling fence, 1.8 metres high, and not to extend over the driveway. The developer was also ordered to remove the temporary fencing and to re-secure the homeowners’ gate to a new post in its original position, fully operational, within 35 days. Before starting, the developer must mark out the line with a string line and give the homeowners 48 hours’ notice to inspect it.

In reaching that result, the Tribunal relied on its power to order a fence on a line other than the boundary and on the statutory rule that doing so does not amount to adverse possession or change who owns the land. It also made two observations that matter a great deal. First, the homeowners’ long, uninterrupted use of the driveway over roughly 80 years may give them an easement (a legal right to use the strip of land) whether by long use (“prescription”) or by an order imposing an easement under section 88K of the Conveyancing Act 1919 but NCAT has no power to decide easement rights; that is a matter for the Supreme Court. Second, the encroaching retaining wall could not be dealt with by NCAT either: removal and compensation for an encroaching building are matters for the Land and Environment Court under the Encroachment of Buildings Act 1922.

The lessons for property owners

This dispute is full of practical warnings for anyone who shares a boundary.

A fence line is not necessarily the boundary line. Fences drift, and many sit slightly off the true boundary, sometimes for generations. A survey showing a small encroachment does not give you the right to seize the strip of land or to treat the fence as yours alone.

Never remove a shared fence without following the process. The developer’s central error was self-help: pulling down the fence and fencing off the driveway without a fencing notice or the neighbours’ consent. The Dividing Fences Act exists precisely so these disputes are resolved by agreement or by the Tribunal not unilaterally. Acting first and arguing later is how you end up paying for the fix.

Long-standing use can create real legal rights. Decades of uninterrupted use of a driveway or path across a neighbour’s land may give rise to an easement. If you rely on such access, get advice about protecting it and if you are buying or developing land, investigate long-standing use before you assume you can build over it.

Match the problem to the right forum. This case neatly illustrates that different disputes belong in different places: dividing fences go to NCAT or the Local Court; easements are decided by the Supreme Court; and encroaching buildings (like that retaining wall) are dealt with by the Land and Environment Court. Bringing a claim in the wrong forum wastes time and money.

Get a survey and advice before you build or renovate near a boundary. Whether you are putting in a driveway, a wall or a fence, knowing exactly where the boundary sits and what rights your neighbour may already have can prevent an expensive dispute.