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
- 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 before coming to ACAT.
If you reach an agreement, write it down, have both you and your neighbour sign and date the agreement, and 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:
Before coming to ACAT, you must send your neighbour a notice to discuss the fence [DOC 31KB]. This sets out what the dispute is about, invites your neighbour to discuss the issue and asks for a response. You must keep a copy of the notice and record the date you send it to your neighbour.
You must send your neighbour the notice one month 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.
How to apply
If you cannot resolve your fence dispute with your neighbour, you can apply to ACAT. To make an application you need to:
- fill in the fence dispute application form [PDF 190KB]
- attach the notice to discuss the fence [DOC 31KB] (including the date you provided this to your neighbour)
- lodge the form, 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 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).
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:
- ask one or both parties to provide further information
- schedule the case for a hearing, sometimes on an urgent basis
- schedule the case for a conference and immediate determination (or sometimes for a conference).
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 the parties.
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.
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.
If you do not want to contest the matter, you should contact the applicant (the person who brought the case to ACAT) and try to settle it by agreement.
Check the correspondence from ACAT to see whether or not you need to provide documents and evidence before coming to ACAT.
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).
ACAT will usually schedule the case for a:
You will have the opportunity at a conference to talk to the other party and an ACAT Member. If you do not reach an agreement, the case will progress to a hearing before a different ACAT Member. If your case has been scheduled for a conference and immediate determination, the hearing will usually occur on the same day as the conference.
If you are seeking a variation of the orders made about the fence, you can lodge an application for interim or other orders form [PDF 56KB]. You will need to clearly set out what change you are asking for, and why you are making the request.
If you think ACAT made an error when it decided the application, you may appeal within 28 days of the decision.
Find out about:
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.
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.
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’.
ApplicantThe individual or company that brings a case to ACAT, usually by making an application.
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.
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.
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.
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.
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.
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.
RegistryThe administrative section of ACAT that accepts documents lodged by parties, handles enquiries and provides support for case management.
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.
Short service orderAn order that authorises a shorter time for service (than the time otherwise required).
Serve/serviceA person who can give evidence at a hearing. Find out about witness statements.
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.