The Dividing Fences Act in NSW. The steps, who pays, and where the fence goes. A guide from Wollongong Surveyors. The old fence is leaning, rotting or half down, and you want it replaced, with your neighbour sharing the cost. The Dividing Fences Act 1991 sets out how that works: who pays, what you have to put in writing, how long you wait, and who decides if you cannot agree. This guide takes the steps in order, and adds the step to take before the notice: settling the line the fence will be built on. This is general information only, not legal advice. Where there is no sufficient fence between two properties now, the neighbours pay equal shares for a sufficient dividing fence. If one of you wants something better than that, the extra cost is theirs. If you cannot agree, the process is a written fencing notice, a one-month wait, and then an application to the NSW Civil and Administrative Tribunal, known as NCAT, or the Local Court, for a fencing order. The Act does not set one standard. If it comes to a decision, NCAT or the Local Court looks at all the circumstances, including the existing fence, how the land is used, privacy, the kind of fence usual in the area, and any council fencing policy. Where there is no sufficient fence now, both owners pay equal shares for a fence of a sufficient standard. An owner who wants a higher or more expensive fence pays the amount above that standard. A different split applies only if the neighbour agrees, or a court or NCAT orders it. And an owner whose negligent or deliberate act damaged the fence can be liable for up to the whole cost. On residential land, side and rear boundary fences can be built without planning approval up to 1.8 metres high, or 1.2 metres if masonry, when the other conditions are met. And a fence under the Act includes the foundation or support the fence needs, but not a retaining wall as such. The Act does not change the law on retaining walls. On a sloping Illawarra block where the fence sits on a wall, get engineering or legal advice on the wall separately. Step one: talk to your neighbour. Agree the type of fence, the cost split, who will build it, and the line, and put the agreement in writing. Step two: be sure of the line. The notice has to name the line the fence will be built on. If you both agree the old fence is on the boundary, note that. If not, settle it before anyone quotes. Step three: serve a fencing notice. If you cannot agree, serve a written notice under section 11. It must state the boundary line the fence will be built on, or another line if building on the common boundary is impracticable; the type of fencing work; the estimated cost; and any split other than equal shares. Legal Aid NSW says there is no set form, suggests attaching a written quote and stating who will do the work and the start and finish dates, and explains that the notice can be handed over in person or posted. Keep a copy and note the date. Do not start work early. Except in limited cases such as urgent work, your neighbour does not have to contribute to work done before the notice is served. And they do not have to contribute to work done after it, but before you agree or the matter is decided. Step four: wait one month. If you have not agreed within one month after the notice was served, either owner can apply for orders. A note on mediation: the Act still mentions Community Justice Centres, but since 1 July 2025 they no longer offer mediation except for disputes referred by the courts or involving incorporated associations. You can still suggest mediation to your neighbour. Step five: apply to NCAT or the Local Court. Orders can cover the line the fence is built on, the kind of fence, how costs are shared, which part each owner builds, when the work is done, and even that no fence is needed. Where does the new fence go? Usually on the common boundary, the legal line between the two titles. But the Act defines a dividing fence as one separating the two properties whether on the common boundary or on another line, and an order can set the line, whether or not it is the common boundary. The old fence is not a reliable guide. It may have been built by eye decades ago. And the boundary lines on government maps are not a measurement either: Spatial Services explains that the state's parcel map was traced by hand and digitised without survey control, and that it has since improved the positions of more than 1.3 million parcels. Do I need a survey to build a fence in NSW? Usually only when the line is in doubt: when the old fence is gone or looks off line, the block slopes or the fence sits on a retaining wall, you are building something more permanent, or your neighbour questions the boundary. Surveying for the fence is part of fencing work under the Act, so it can go into your notice. If you and your neighbour disagree on the line, the Act has a procedure. You can give written notice that you intend to have the boundary defined by a registered surveyor. Your neighbour then has 7 days to peg the line themselves or engage a registered surveyor, and must tell you in writing what they did. If your surveyor finds the line where your neighbour's pegs put it, you pay your neighbour's costs. Otherwise, reasonable survey costs are shared equally. NCAT also lists a current survey of the boundary line, if you have one, among the evidence to gather. And in NSW, a paid boundary survey must be carried out by a registered land surveyor. A boundary survey checks the title and earlier survey evidence, marks the boundary positions on site, and checks the existing fence and nearby structures against them. You, your neighbour and the fencer then work from the same marks. We work across Wollongong and the Illawarra, with over ten years' experience. For a free, no-obligation quote, call (02) 4210 5831, or send your address and what is happening with the fence through the contact form. The tables and every source are in the written guide.