Fence disputes

A fence or common boundary dispute is a disagreement about a fence between adjoining land. The dispute can be over issues such as the type, colour and height of a fence, where the fence should go, whether a fence needs repair, the cost and who will pay for it. The law that applies to fences is the Common Boundaries Act 1981.

ACAT hears and decides fence disputes.

The types of orders ACAT can make for a new fence (‘new fence determination’) are:

  • the type of fence that should be built
  • where the fence should be built
  • who will organise the fence to be built
  • how much each party should pay for the cost of the fence, and when and how the cost is to be paid.

The types of orders ACAT can make about a fence that needs repair or replacement (‘repair determination’) are:

  • what type of repair is needed
  • what type of replacement fence should be built
  • who will organise the repair or replacement of the fence
  • where the fence should be built
  • how much each party should pay for the cost of the repair or replacement of the fence, and when and how the cost is to be paid.

The types of orders the ACAT can make about a fence that has already been repaired urgently with some of the costs now being sought from a neighbour (‘repair cost determination’) are:

  • whether a party (other than the applicant) should be required to pay some of the cost of replacement
  • if so, how much and when this will be paid.

ACAT can also make orders for an unleased land determination (see the Common Boundaries Act 1981 for more information).

Before you apply

Try to resolve your dispute by discussion before coming to ACAT.

If you reach an agreement, you should write it down and both you and your neighbour sign and date the agreement. You should each keep a copy. If you cannot reach an agreement, try to identify the exact issues in dispute and possible solutions. This information will help you later.

You can review information about the kind of fences allowed and which fences require planning approval from ACTPLA at:

Before coming to ACAT, you must give your neighbour a notice to discuss the fence [PDF 988KB]. This sets out what the dispute is about, invites your neighbour to discuss the issue and asks for a response. Make sure you:

  • keep a copy of the notice
  • record the date you gave it to your neighbour
  • record how you gave it to your neighbour

You must send your neighbour the notice 30 days before applying to ACAT if you:

  • are building a new fence or
  • are repairing or replacing your existing fence

You must send your neighbour a notice to discuss the fence 14 days before applying to ACAT if you have already urgently repaired or replaced your fence and you are now asking your neighbour to pay some of the cost.

Keep information relevant to the dispute so you can include it with your application. For example:

  • a copy of the notice to discuss the fence
  • details of when and how you gave the notice to your neighbour
  • any correspondence about the fence

There is sometimes other information you can give us when you apply. For example:

  • If the dispute is about the colour of the fence, you might give us colour swatches of the colours in dispute
  • If the dispute is about the location of the fence, you might give us a survey or plans.

How to apply

If you and your neighbour cannot agree about the fence, you can apply to ACAT. To make an application you need to:

  • fill in the fence dispute application form [PDF 294KB]
  • attach the notice to discuss the fence [PDF 988KB].
  • tell us in your application the date you provided the notice to your neighbour, and how the notice was given
  • make copies of the application – one copy for each party in the case and a copy for ACAT
  • lodge the form (and your copies) at ACAT, ensuring all details are completed in full
  • tell us the times and dates you are not available to attend ACAT, for example, if you are overseas or having a medical procedure
  • pay the fee, unless you have an exemption, waiver or deferral.

If your application is urgent, you need to lodge an online application for interim or other orders form or printable application for interim or other orders form [PDF 56KB] at the same time you lodge your application, telling ACAT why your application is urgent (for example, your backyard does not have a fence and you have a pet, or you think your fence is a safety hazard).

If you and your neighbour agree, you can ask ACAT to:

  • waive the requirement to give a notice to discuss the fence
  • waive the requirement to wait a certain period after giving the notice before coming to ACAT.

If there are problems with the fence notice you gave to your neighbour or no notice was given, you can ask ACAT:

  • to treat the notice as if it complies with the requirements in the Common Boundaries Act 1981
  • correct a mistake in the notice
  • proceed with the application as if the notice complied with the requirements in the Common Boundaries Act 1981
  • if no notice was given – declare who the respondent to the application is

You may decide to get legal advice before making an application. ACAT staff can provide you with procedural advice, but cannot give you legal advice.

You and your neighbour can be represented by a lawyer at ACAT, but it is not necessary and generally ACAT cannot make orders about payment of legal costs. You can also be represented by someone other than a lawyer if that person is authorised.

What to expect after an application is made

After an application is received, ACAT will determine the best way for the case to proceed. ACAT may:

ACAT will send a notice to the parties stating the date, time and location to attend ACAT. We will also send a copy of the fence dispute application to each party.

In some cases, you may also be sent directions to let you know what you need to provide to ACAT and the other party about your case, and by when. It is important to comply with all timeframes set out in the directions.

ACAT is conducting a Civil Process Trial between 10 May 2023 and 23 October 2023. For more information about the trial and how it might affect your proceedings, please see Civil Process Trial.

Responding to an application

If you receive a notice that you are required to attend ACAT about a fence dispute that you did not commence yourself, you are a respondent. You need to think about what orders you want ACAT to make and why.

Check the correspondence from ACAT to see whether or not you need to provide documents and evidence before coming to ACAT. Also read the information above about what to expect after an application is made.

You may decide to get some legal advice about the dispute. ACAT staff can provide you with procedural advice, but cannot give you legal advice.

You can be represented by a lawyer when you come to ACAT, but it is not necessary and generally, ACAT cannot make orders about payment of legal costs. You can also be represented by someone other than a lawyer if that person is authorised.

Resolving your fence dispute

Even after a fence dispute application is lodged, it is a good idea to continue to talk to your neighbour to see if an agreement can be reached. If you reach an agreement, ACAT can make consent orders to finalise the case (see our information about resolving your case outside ACAT).

Any decisions made by ACAT are enforceable by the Courts, not by ACAT. The ACT Magistrates Court has guidelines for enforcement.

Variation

If you are seeking a variation of the orders made about the fence, you need to lodge a fresh fence dispute application form and pay the fee (unless you have an exemption, waiver or deferral). You will need to clearly set out in the form what change you are asking for, and why you are making the request.

Appeals

If you think ACAT made an error when it decided the application, you may appeal within 28 days of the decision.

More information

Find out about:

Glossary and terms

Glossary and terms

ACT Civil and Administrative TribunalA tribunal established under the ACT Civil and Administrative Tribunal Act 2008. It may also be referred to as ACAT or Tribunal.

Adjourn (or adjournment)To suspend or postpone a preliminary conference, mediation or hearing and reschedule it for a future date.

Administrative reviewACAT has jurisdiction to review some administrative decisions made by the ACT Government. Find out about Review of ACT Government decisions.

Alternative dispute resolution (ADR)Also known as dispute resolution. This is a way of resolving disputes without a formal hearing. It may involve a preliminary conference or mediation. ADR is used to help parties resolve cases by agreement.

AnorMeans ‘and another’. This term is generally used to name parties to proceedings when there is more than one applicant or respondent.

Appeal TribunalA tribunal constituted under section 81 of the ACT Civil and Administrative Tribunal 2008 to review a decision of the tribunal (not all ACAT decisions are appealable at ACAT – you may need to go to the Supreme Court).

AppellantThe individual or company that appeals an ACAT decision.

ApplicantThe individual or company that brings a case to ACAT, usually by making an application.

Authorising lawsA law that says an application (including referrals) may be made to ACAT. An authorising law may also set out the powers ACAT has in a case. Also see ‘jurisdiction’.

Calling a witnessA party or their representative will ‘call a witness’ at an ACAT hearing when they ask a witness to give evidence.

CaseAlso known as a matter, dispute, application or referral. Cases come to ACAT when ACAT has jurisdiction (power) to make a decision.

Cross-examinationThe process of asking a witness questions to test or check the evidence that the witness has given to ACAT.

DecisionWhat the tribunal decides or determines about an issue or a dispute. The tribunal may sometimes explain why in a statement of reasons.

Defined benefitsare the following benefits (see section 33 of the MAI Act):

  1. income replacement benefits;
  2. treatment and care benefits;
  3. quality of life benefits;
  4. death benefits;
  5. funeral benefits.

Deliver a decisionAlso ‘handing down a decision’. This is giving a decision about an ACAT case. It may be done verbally or in writing (or both).

DirectionsInstructions that set out what each party must do (and when), often to prepare a case for hearing.

Directions hearingA short hearing where an ACAT Member or Registrar decides how to manage a case and what needs to be done before a hearing. Find out about directions hearings.

Ex parte orderAn order made by ACAT where one or more parties were not present.

Expert reportA written report from an expert that may be used as evidence.

Expert witnessA person with specialised knowledge based on their training, study or experience. An expert can give evidence at a hearing. Find out more about witness statements.

Final directions hearingSometimes ACAT will hold a final directions hearing prior to the final hearing of an application. The purpose is to make sure the case is ready to go to a hearing and give the parties a chance to ask questions about the hearing process.

GuardianA guardian is a person ACAT appoints to make personal decisions, about health, welfare and where a person lives, for a person who has impaired decision-making ability (the ‘protected person’).

Handed upGiving documents to an ACAT Member or Registrar in a hearing.

In chambersWhen ACAT considers something without holding a hearing.

Joined party (joined/joinder)A party who was not originally a party to the dispute but has later been added to the case.

JurisdictionACAT’s authority (power) to deal with, hear and decide applications (cases).

LeaveIf someone asks for leave, they are usually asking for permission to do something.

List (or listing)A schedule (or list) of cases to be heard at ACAT each day.

Listing noticeA letter or written document from ACAT that sets out when a conference, mediation or hearing is scheduled at ACAT.

ManagerA manager is a person ACAT appoints to make decisions, about property and money, for a person with impaired decision-making ability (the ‘protected person’).

MAI ActMotor Accident Injuries Act 2019 (ACT).

MediationA private meeting where parties discuss ways to resolve their dispute, with the help of an impartial mediator (who is also an ACAT Member or Registrar). It is held under section 35 of the ACT Civil and Administrative Tribunal Act 2008.

Non-publication and/or non-disclosure orderAlso called a ‘suppression order’. It is an order that requires certain information not to be published or disclosed. It is made under section 39 of the ACT Civil and Administrative Tribunal Act 2008. Find out about public hearings and confidentiality.

Notice to partiesA letter sent to the parties in a case that sets out the time, date and location for an ACAT conference, mediation or hearing.

Opening statementUsually means a statement made at the beginning of a hearing to outline the key points in the case. Sometimes parties are asked to give an opening statement at a mediation or preliminary conference.

OrderA direction or instruction of the tribunal that a person do a certain thing. The tribunal can make different types of orders depending on the case type and the tribunal’s powers in a case or dispute.

Originating applicationAn application that starts an ACAT case.

Party or partiesAn individual or company directly involved in an ACAT case, for example an applicant or respondent. Find out how to identify and name parties.

Preliminary conferenceA private meeting where parties discuss ways to resolve their dispute with the help of an ACAT Member or Registrar. See section 33 of the ACT Civil and Administrative Tribunal Act 2008. ACAT has different types of preliminary conferences.

Protected personA person who has impaired decision-making ability and about whom an application to ACAT may be made seeking orders under the Guardianship and Management of Property Act 1991 or the Power of Attorney Act 2006.

RegistryThe administrative section of ACAT that accepts documents lodged by parties, handles enquiries and provides support for case management.

Relevant insurerfor a motor accident, means the insurer under the Motor Accident Injuries Act 2019 (see section 34) of the motor vehicle considered to be at fault for the motor accident in the ACT.

RepresentativeA person who represents or advocates for an individual or company at a conference, mediation or hearing at ACAT. For example, a legal practitioner or an attorney appointed under a general power of attorney.

Reserved decisionWhen an ACAT Member or Registrar reserves a decision (at the end of a hearing), this means they will give their decision later, either verbally or in writing (sometimes both).

RespondentThe party (or parties) against whom orders or relief is sought.

Serve/serviceA person who can give evidence at a hearing. Find out about witness statements.

Short service orderAn order that authorises a shorter time for service (than the time otherwise required).

Significant occupational impact (SOI)Significant impact on an injured person’s ability to undertake employment.

Statement of reasonsA document that explains why ACAT made an order in a case. It sets out the law relied on by an ACAT Member or Registrar and explains how the law was applied to the facts of the case. You can request a written statement of reasons within 14 days after an order is made. Find out about statement of reasons.

StayAn order for a particular action (or decision) to be put on hold or suspended for a period of time.

SubmissionA document that sets out your side of a case or dispute and the relevant law. It is presented to ACAT either in writing, verbally or both. Find out about submissions.

SubpoenaRequires a person to appear at ACAT to give evidence or provide documents (or both). Find out about subpoenas.

Substituted service orderAn order that says how a party is to be served with an application or other documents related to the proceedings. In a civil dispute or a rental dispute, an applicant will need to consider asking for a substituted service order if they do not have a physical address for the respondent. Find out about lodging and serving documents.

WitnessA person who can give evidence at a hearing. Find out about witness statements.